Lack Of Judicial Independence Research Articles

Derecho Penal Sustantivo y Adjetivo en México: control social para la prevención y represión de conductas delictivas

This study aimed to analyze the persistent human rights violations within the Mexican criminal justice system, despite the reforms implemented. The main objective was to examine the role of formal social control in crime prevention and repression, as well as to evaluate the effectiveness of substantive and procedural criminal law in protecting fundamental rights. To conduct this research, an review of specialized literature and reports from international and national organizations was carried out. The results reveal that, despite normative advances, practices such as torture, arbitrary detention, and inhumane prison conditions persist. These violations are exacerbated by the lack of judicial independence, corruption, and impunity. The analysis of substantive and procedural criminal law showed that, while there are advances in legislation, problems such as the imprecision of some criminal offenses, the workload of system operators, and the lack of resources persist. In conclusion, the Mexican criminal justice system faces significant challenges in protecting human rights. A comprehensive reform is required that addresses the structural causes of violations, strengthens judicial independence, professionalizes police forces, and guarantees access to justice. Furthermore, it is essential to promote a culture of legality and respect for human rights.

Cameroon and its 21st Century Challenges towards Achieving Sustainable Development: Appraisals and Proposals

Purpose: This study presents an appraisal of some of the dynamics which Cameroon continues to face in the 21st Century in its quest to achieve sustainable. Using various indicia, the study identifies and proffers explanation why the country continues to face surmountable challenges in its pursuit towards achieving sustainable development. To attain this objective, a broad review of published literature was employed using various journal articles, textbooks, internet sources, etc. Methodology: The study adopts a qualitative research methodology in the interpretation of data. These data are both primary and secondary derived from laws, text books, journal articles, reports, working papers and other internet sources. This study adopts an analytical approach in the interpretation of the available data. Findings: The study observes that irrespective of existence of deterrent penal laws, policy formulations from international organization and support from foreign donor institutions, the country is not yet on the path towards sustainably sound environmental practices. Cameroon is engulf in a number of challenges both internal and external, which has accounted for continuous impoverishment of its population, social progress and economic advancement of the country generally. The Study employs the post-colonial and dependency theories of development to justify some of the key findings. The internal challenges revealed in the study ranges from the continuous prevalence of poverty and hunger, corruption and misappropriation, lack of judicial independence, the prevalence of conflicts, environmental degradation and poor enforcement measures. Similarly, this study also found the underlying external challenges to include the Structural Adjustment Programmes, the influence of Foreign Financial Institutions, and neo-colonialism. Unique Contribution to Theory, Practice and Policy: This study therefore concludes that strengthening enforcement measures, effective implementation of poverty alleviation policies, fight against corruption and misappropriation, and citizen participation can positive contribute to sustainable development in the Cameroon.

Old Wines in New Bottles? Private Securities Litigation in China’s New Securities Law

Private securities litigation has been very weak since the establishment of China’s stock market some 30 years ago. A new law on securities took effect in March 2020 and introduces some reformist changes to this area. This article will examine the likely effect of the new Securities Law on this form of litigation. In particular, it will examine China’s most celebrated ‘quasi-class action’ system, i.e. Special Representative Litigation. This procedure is borrowed from Taiwan’s non-profit organization model. The essay argues that, since the new Securities Law has made only limited efforts in addressing the primary reason for the weak private securities litigation, namely, lack of judicial independence, it is unlikely to make any significant changes to private securities litigation in China.
 Keywords: private securities litigation; securities law; class action; cost of litigation; judicial independence.

The Politics of Religious Pluralism in Indonesia: The Shi'a Response to the Sampang Incidents of 2011–12

AbstractAn increasing number of reports and studies on offenses against religious minorities has been published in Indonesia since the country's democratic transition in 1998. While the literature on intolerance unveils the young democracy's institutional problems which have undermined and eroded minority rights, such as direct elections and the lack of judicial independence, it leaves many critical questions to address. Although the number of victims of religious intolerance increased, in the same institutional settings, a large number of religious minorities has managed to prevent escalating violence and avoid being targeted by intolerant groups. Under what circumstances and how do minorities deter attacks in a time of heightened tension against them under a democratic system that has afforded them little protection? This article sheds light on the case of the Shi'a who suffered a series of attacks in Sampang, Madura in the East Java province, but have since gradually developed resilience. A series of attacks in Sampang in 2011–12 was one of the most destructive events against religious minorities in Indonesia. Examining the Sampang incidents, this article argues that if the religious minority can develop a cohesive network with elements of the majority capable of mobilising state power, it would build a safety net preventing attacks by intolerant groups. Thus, this article aims to develop our understanding of how religious minorities address violence caused by hostile socio-political forces and adapt to Indonesia's democracy.

The limits to judicial independence: Cambodia’s political culture and the civil law

ABSTRACTDistinctions between the common and civil law are crucial when considering the rule of law and judicial independence in a political system. The 1993 Constitution of the Kingdom of Cambodia provides for a democratic government with separation of powers, judicial independence and human rights guarantees consistent with international legal instruments. However, Cambodia ranks poorly in international indices of political interference and corruption in the judiciary and for the rule of law. Drawing on interviews with Cambodian state officials and legal practitioners, the article situates the domestic judiciary within the socio-political environment and constitutional arrangements in which it must operate and examines the limits to judicial independence in the country. The article argues that the lack of judicial independence in contemporary Cambodia is not only attributable to its neopatrimonial political culture but also to the legal-institutional framework established during the United Nations Transitional Authority in Cambodia (UNTAC) period. The legal-philosophical underpinnings of civil law, the nature of the civil law system operating in Cambodia, and how it is interpreted locally, are crucial to understanding the limits to judicial independence in the country.

Judicial independence as a precondition for mutual trust? The CJEU in Minister for Justice and Equality v. LM

This article discusses the relationship between judicial independence and intra-European Union (EU) cooperation in criminal matters based on the principle of mutual recognition. It focuses on the recent judgment by the Court of Justice of the EU in Case C-216/18 PPU Minister for Justice and Equality v. LM. In our view, a lack of judicial independence needs to be addressed primarily as a rule of law problem. This implies that executing judicial authorities should freeze judicial cooperation in the event should doubts arise as to respect for the rule of law in the issuing Member State. Such a measure should stay in place until the matter is resolved in accordance with the procedure provided for in Article 7 TEU or a permanent mechanism for monitoring and addressing Member State compliance with democracy, the rule of law and fundamental rights. The Court, however, constructed the case as a possible violation of the right to a fair trial, the essence of which includes the requirement that tribunals are independent and impartial. This latter aspect could be seen as a positive step forward in the sense that the judicial test developed in the Aranyosi case now includes rule of law considerations with regard to judicial independence. However, the practical hurdles imposed by the Court on the defence in terms of proving such violations and on judicial authorities to accept them in individual cases might amount to two steps back in upholding the rule of law within the EU.

Judicialization of Politics and Legal Culture: The Passage of the Philippine Parity Amendment of 1946

This article examines the Philippine legal culture by highlighting the politics of the Philippine constitutional amendment in 1946-47 and the centrality of the role of judicial review in this process. As this paper shows, the role of the judiciary as ‘the final arbiter of law’ is hinged on this institution’s independence; however, judicial independence was problematic at this juncture in Philippine history. The Philippine Supreme Court, through its power of judicial review, failed to stand for constitutionalism and demonstrated a lack of judicial independence. Employing textual and historical analyses, this paper analyzes the Philippine Supreme Court’s decisions on cases relevant to the constitutional amendment, their precedents, and the history and politics of the amendment. It argues that the decisions on the constitutional amendment cases demonstrate a legal culture of judges and politicians that developed under colonial conditions where norms of legality highlight judicialization of politics and politicization of the judiciary.

The Practice of Pretrial Detention in Armenia: an Examination of the Role of the Soviet Legacy

This research provides an exploration of the role of the Soviet legacy in the practice of pretrial detention in Armenia. Research employed a theoretical framework of historical institutionalism to interpret the results of qualitative analysis of 36 semistructured, in-depth interviews with judges, police investigators and other stakeholders conducted in the summer of 2011. The examination of pretrial detention practices has indicated the existence of punitiveness, lack of judicial independence, and other integral components of the Soviet criminal justice system. Moreover, it seems that newly introduced institutions have been adapted for maintaining the legacy of the Soviet Supreme Court. It was evident that the criminal justice institutions were still steeped in the practices and norms from the Soviet era. The continuity of the institutional arrangements is quite perplexing given the overwhelming nature of the breakdown of the society after the collapse of the Soviet Union. The perspectives of historical institutionalism offer a theoretical explanation of the persistence of various facets of Soviet institutional legacy in the practice of pretrial detention. Despite the collapse of authoritarianism and the adoption of a new domestic legislative framework, Soviet legacy affects pretrial detention practices in Armenia.

Justice in the Shadow of Power: Understanding the Limits of Civil Justice Reform in China Through Entrepreneurs’ (Un)Willingness to Use Courts

Based on the private enterprise surveys conducted in the 2000s, this paper ascertained that, in China, entrepreneurs who are politically connected were more inclined than those unconnected to resolve disputes through litigation, especially when the disputes were between private parties. Administrative disputes were much less frequently resolved in courts for either the political haves or have-nots. Moreover, the different litigation inclinations did not seem to be a consequence of different mastery of legal knowledge since the gap did not narrow in spite of the increase of learning opportunities over time. All these findings seem to confirm the political bias ingrained in the Chinese judiciary. At the same time, the quantitative study also showed the recent civil justice reform to be ineffective in correcting this judicial bias. Lack of judicial independence was blamed to have led the civil justice reform to a dead end. With no improvements in courts’ neutrality, the technocratic reform failed to win support from the people. The Chinese experience told an illustrative story of judicial professionalism not being self-sustainable when divorced with judicial independence.

Institutionalizing criminal process In China

After 30 years of reform, China’s criminal justice system remains signifi cantly defective and notorious for its lack of procedural protection of rights. Commentators are particularly harsh on China’s record, highlighting torture during police interrogation, unlawful detention, lack of effective criminal defence, lack of judicial independence, wide use of the death penalty, corruption and many other forms of abuse. While largely agreeing with the criticisms, this chapter explores an often-neglected dimension of the criminal justice system – the institutionalization of criminal courts in China in the past 30 years. This chapter contextualizes criminal trial reform in China’s socioeconomic, legal and political conditions and assesses China’s criminal court in the context of its own historical development.

'Speaking the Truth' to Hu and Wen: Open Letters, Civil Dissension and Rights Advocacy in China

China has experienced rapid development over the past twenty-five years, and skepticism about whether China might have any law at all has now given way to skepticism about whether its law can and will protect fundamental rights of its citizens, especially the rights of the new underclass, and of those in open disagreement with the party-state. These concerns are related to persistent institutional difficulties such as lack of judicial independence, legislative incoherence, and the conditions imposed by the one-party state. In this context, the use of public or ‘open’ letters in recent years in China, including letters released on the internet, raises interesting issues. Open letters and similar forms of expression are sometimes used in lieu of litigation – not because they are perceived to be better than litigation, but because litigation is not available in numerous cases in which citizens think that their legal or constitutional rights have been violated, and in which they or someone on their behalf wish to assert this fact. Open letters are also used by people seeking to challenge the constitutionality of legislation. There are some obvious ways in which open letters cannot functionally replace litigation. Most obviously, they may not even elicit a response, and are often unlikely to lead to a decision in favour of the author, or of the person on behalf of whom the letter is written. How even so open letters may matter to the life of the law in China, is explored in this paper.

Reason for Hope? The Spotted Owl Injunctions and Policy Change

Under what conditions can US courts contribute to policy change? This article shows how a case study can be used to test and develop a theory of judicial policy making answering this question. In The Hollow Hope (1991, 2008), Gerald Rosenberg theorizes that judicial policy making is constrained by the limited nature of constitutional rights, the lack of judicial independence, and the judiciary's inability to implement its rulings. Ninth Circuit injunctions protecting the Northern Spotted Owl and orders to manage ecosystems in the Pacific Northwest invalidate and help reformulate Rosenberg's theory. These rulings show how judicial interpretations of statutes, regulations, precedent, and facts allow judicial policy making if these interpretations are accepted by the legal and political culture when Congress and the presidency are too divided to override them. The owl rulings also show how statutes facilitate the implementation of judicial rulings, a point not developed by Rosenberg, while additionally providing further evidence for Rosenberg's specification of conditions allowing implementation.

Judicial Independence in China: Common Myths and Unfounded Assumptions

The Chinese judiciary is regularly criticized for lack of independence. The lack of genuine progress in establishing an independent judiciary is then cited as evidence that China's reform process is trapped in transition. In response, international donor agencies and bilateral legal cooperation programs have encouraged China to adopt institutions and practices found in advanced Western states known for rule of law. Surrounding these views is a set of common myths and unfounded assumptions. The first assumption is substantive: concept of judicial independence is clear, and there is a single agreed upon model or a generally accepted set of institutions and best practices articulated with sufficient specificity to guide reformers. The second assumption is methodological: there are clear standards for measuring judicial independence. The third assumption is normative: we know how independent courts should be (at each stage of development). The fourth assumption is more independence better. The fifth assumption is that lack of judicial independence is a serious problem in all types of cases in China. The sixth is that China's courts lack independence because independence is impossible within a single party state. The seventh, and a corollary, is that the Party is main source of interference with courts. The eighth is that were China to suddenly democratize, judicial independence would no longer be a problem. This article advances three main theses. First, each of these eight assumptions is either wrong or needs to be qualified. Second, general statements about lack of judicial independence or impossibility of achieving judicial independence in a single party state fail to capture complex reality of China or many other authoritarian regimes. Third, legal reforms that assign a high priority to judicial independence will be unsuccessful or limited in their effectiveness until there is a deeper understanding of these issues as they apply to China and to developing countries more generally. Part I distinguishes between various aspects or subcomponents of judicial independence. Part II then takes each of subcomponents of judicial independence in turn, reserving a discussion of main external constraints on judicial independence for Part III. Part IV discusses implications of China's efforts to increase judicial independence for law and development movement, including observations about methodology and relationship between regime type and judicial independence. Part V concludes with some recommendations on how to address related problems of judicial corruption and judicial independence.

Was the Dujail Trial Fair?

The Dujail trial against eight persons accused of crimes against humanity was intended as the first of fourteen trials; it was seen as a quick and simple case that would enable the Tribunal to develop its skills outside the limelight. The trial was in fact a missed opportunity in the search for Iraqi justice. It fell short in three notable ways: (i) it was severely compromised by political interference: lack of judicial independence, linked to the absence of a culture of respect for the fairness and impartiality of the judicial process, was the greatest failing of the trial; (ii) there were breaches in fair trial standards at the trial and appellate level; (iii) due to evidentiary and analytical gaps, the trial did not expose the full extent of crimes committed by the deposed regime; much of the judgment hinged on inference and stretched notions of liability. The Dujail trial was better than previous (and current) Iraqi trials. But that was not enough to meet minimum fair trial guarantees.