Document Library

Key Text Diagnosing Judicial Performance: Toward a Tool To Help Guide Judicial Reform Programs

Author: L Hammergren
Date: 2002
Size: 21 pages (120 KB)

Access full text: available online

Summary

There have been many efforts to write checklists for judicial reform, but little success in implementing them. This is partly because there have been different sponsors commissioning the checklists or different themes or intended applications underlying them.

This paper, prepared for Transparency International’s ad hoc working group on judicial integrity, provides a checklist for diagnosing judicial performance. It aims to evaluate the transparency and related aspects of judicial performance and is intended to promote reform programmes. The list is composed of the characteristics believed to be critical in producing the desired patterns of behaviour. It is intended to be applied globally, and was not written with any specific legal system or tradition in mind. It aims to capture universal factors that will help identify real or potential problems in judicial operations. There are many factors that contribute to the success of a judiciary: it is not an isolated organisation. An unfavourable environment, such as social breakdown or the inequitable distribution or the scarcity of resources, for example, can have a negative effect on its performance. This checklist assumes that the surrounding environment is favourable, and that the legal framework is adequate.

The way in which judges are selected and subsequently treated by their institution has a strong effect on how they behave. Therefore, efficacy, transparency, accountability and independence are the focus of the list, rather than all areas of judicial performance. Such a checklist includes the following imperatives:

The selection of judges should be made with external input and be subject to transparent rules. Salaries should meet the living wage, and salaries and budgets should not be reduced
Other branches of government should not be able to override or ignore judicial decisions. Public input should be sought as part of the judicial process, and standards of judicial performance and ethical behaviour should be publicised
Judges' budgets, salaries and audit results should be publicly available, as should rules for how cases will be processed
Judges should be selected on the basis of job-relevant merit and have tenure. Standards of performance and publicised criteria for employment practices should be used. Administrative processes should follow set rules and procedures
Changes in budgets should follow the growth or decline of the national budget and demands for judicial services. Processes for handling cases should be standardised and rule of evidence should be applied predictably
There should be a transparent process for entering the profession.

Current judicial reform efforts, especially those sponsored by foreign assistance, have not targeted the appropriate issues. In particular, these efforts have focused on technical innovation or modernisation. Neglected themes have been those relating to improving the quality of judicial personnel. In fact, this is the most important element in combating corruption. Policy recommendations are that:

An evaluation should be done by a panel of comparative legal experts
To evaluate a country adequately, panel members need to have an in-depth knowledge of specific cases
It follows that qualitative aspects of judicial performance should be focussed on.

Access full text: available online

Source: Hammergren, L. 2002, 'Diagnosing Judicial Performance: Toward a Tool to Help Guide Judicial Reform Programs', paper prepared for Transparency International 9th International Anti-Corruption Conference, Durban.
Organisation: International Anti Corruption Conference (IACC), http://www.transparency.org