REDUCING CORRUPTION IN THE JUDICIARY - OFFICE OF DEMOCRACY AND GOVERNANCE USAID PROGRAM BRIEF

 
REDUCING CORRUPTION IN THE JUDICIARY - OFFICE OF DEMOCRACY AND GOVERNANCE USAID PROGRAM BRIEF
REDUCING CORRUPTION IN
THE JUDICIARY
OFFICE OF DEMOCRACY AND GOVERNANCE
USAID PROGRAM BRIEF

 JUNE 2009

 This publication was produced for review by the United States Agency for International
 Development. It was prepared by DPK Consulting, a Division of ARD, Inc.
Reducing Corruption in the
Judiciary
Office of Democracy and Governance
USAID Program Brief

June 2009

DISCLAIMER
This report was produced for review by the Office of Democracy and Governance, Bureau for
Democracy, Conflict, and Humanitarian Assistance, United States Agency for International
Development, under the terms of Task Order No. 5, Contract No. DFD-I-01-03-00141-00. The report was
prepared by DPK Consulting, a Division of ARD, Inc. The author is James Michel, DPK Senior Counsel.
CONTENTS

ACRONYMS....................................................................................................................................................................... ii
I. INTRODUCTION......................................................................................................................................................... 1
II. THE GOAL OF EFFORTS TO COMBAT JUDICIAL CORRUPTION............................................................ 3
III. ANALYSIS OF JUDICIAL CORRUPTION............................................................................................................ 5
IV. LESSONS LEARNED ABOUT REDUCING JUDICIAL CORRUPTION....................................................... 6
V. PROGRAMMING OPTIONS AND RISKS ........................................................................................................... 9
    A. APPOINTMENT AND TENURE OF JUDICIAL BRANCH PERSONNEL................................................ 9
    B. CASE MANAGEMENT AND COURT PROCEDURES ...............................................................................10
    C. ETHICS AND INSTITUTIONAL INTEGRITY...............................................................................................12
    D. FINANCING THE JUDICIARY .........................................................................................................................13
    E. INVESTIGATION AND PUNISHMENT OF CORRUPT ACTS ...............................................................14
    F. TRANSPARENCY AND PUBLIC PARTICIPATION ....................................................................................16
VI. MEASURING THE EFFECTIVENESS OF ANTICORRUPTION ACTIVITIES............................................17
VII. CONCLUSION ........................................................................................................................................................19
NOTES ...............................................................................................................................................................................21

APPENDICES

    APPENDIX A: BIBLIOGRAPHY........................................................................................................................... A-1
    APPENDIX B: ASSESSMENT CHECKLIST AND SAMPLE QUESTIONS ..................................................B-1
    APPENDIX C: SAMPLE INDICATORS.............................................................................................................. C-1

Reducing Corruption in the Judiciary – USAID Program Brief, page i
ACRONYMS
ADB              Asian Development Bank

CEELI            Central European and Eurasian Law Initiative, American Bar Association

DFID             Department for International Development (United Kingdom)

IDB              Inter-American Development Bank

NGO              Non-governmental organization

OECD             Organization for Economic Cooperation and Development

ROL              Rule of Law

TI               Transparency International

U4               Utstein partnership of the development agencies of Norway, United Kingdom, Canada,
                 Germany, the Netherlands, Sweden, and Belgium

UN               United Nations

UNODC            United Nations Office for Drugs and Crime

US               United States

USAID            United States Agency for International Development

WB               World Bank

Reducing Corruption in the Judiciary – USAID Program Brief, page ii
Bearing in mind the independence of the judiciary and its crucial role in
            combating corruption, each State Party shall, in accordance with the
            fundamental principles of its legal system and without prejudice to judicial
            independence, take measures to strengthen integrity and to prevent
            opportunities for corruption among members of the judiciary. United Nations
            Convention Against Corruption, Article 11

I. INTRODUCTION
The linkages between poverty
reduction, economic growth, and                                      What is Governance?
democratic governance are firmly                     Governance consists of the traditions and institutions
established in current development                   by which authority in a country is exercised. This
thinking, backed by persuasive                       includes the process by which governments are
research. 1 Equally well established is              selected, monitored and replaced; the capacity of the
the recognition by scholars, policy                  government to effectively formulate and implement
makers, and development practitioners                sound policies; and the respect of citizens and the
of the central importance of the rule of             state for the institutions that govern economic and
law and the control of corruption for                social interactions among them.
successfully addressing the related
challenges of social, economic and                   World Bank, Governance Matters, 2008.
political development. 2

The broad international consensus on
the importance of strengthening the rule
of law and combating corruption has
generated a number of policy responses:                            What is the Rule of Law?
                                                     The “rule of law”…refers to a principle of governance
•   The rule of law and combating                    in which all persons, institutions and entities, public
    corruption now feature prominently               and private, including the State itself, are accountable
    in international development                     to laws that are publicly promulgated, equally enforced
    cooperation programs in virtually                and independently adjudicated, and which are
    every sector. National plans of                  consistent with international human rights norms and
    developing countries and programs                standards. It requires, as well, measures to ensure
    of donors and multilateral                       adherence to the principles of supremacy of law,
    development agencies include                     equality before the law, accountability to the law,
    significant rule of law and                      fairness in the application of the law, separation of
    anticorruption efforts and attract               powers, participation in decision-making, legal
    substantial foreign assistance                   certainty, avoidance of arbitrariness and procedural
    resources. USAID has been a leader               and legal transparency.
    in this trend.
                                                     Report of the UN Secretary General on the rule of law and
•   A broad array of international                   transitional justice in conflict and post-conflict societies,
    agreements now obliges developed                 August 2004.
    and developing countries alike to
    combat corruption and gives their
    obligations high visibility. Treaty
    commitments are given effect
    primarily through national laws,

    Reducing Corruption in the Judiciary, USAID Program Brief – page 1
implemented by national courts and             global lessons, it starts from the premise
    national enforcement organizations,            that efforts to combat corruption in the
    thus placing great reliance upon the           judiciary, like other development
    integrity and competence of those              activities, need to be based on the
    institutions. 3                                circumstances of each country and be
                                                   integrated into efforts to improve the
 • Rule of law and anticorruption                  performance of essential functions in
   standards have been established as              this sector. The brief also reflects the
   determinants of eligibility for foreign         guidance of the Rule of Law Strategic
   assistance and other benefits.                  Framework that the rule of law
   Examples include Millennium                     incorporates five essential elements, all
                                                                                                  What is Corruption?
   Challenge Account assistance, trade             of which must be present for the rule of
                                                                                                  Corruption is defined
   benefits, and membership in the                 law to prevail, and that judicial integrity
                                                                                                  as the abuse of
   European Union and other regional               is an important issue that cuts across all
                                                                                                  entrusted authority for
   organizations. Several published                five elements.
                                                                                                  private gain.
   indices that compare and rank
   national performance in these                   The brief specifically addresses efforts
                                                                                                  USAID Anticorruption
   aspects of governance provide                   to reduce corruption in the judiciary. In
                                                                                                  Strategy, December
   additional incentives for adherence             its references to “judicial corruption” it
                                                                                                  2005.
   to high standards. 4                            includes corrupt acts by judges,
                                                   prosecutors, public defenders, court
Against this background, judicial                  officials, and lawyers who are intimately
corruption is an especially pernicious             involved in the operation of the judicial
phenomenon. When the judiciary –                   system. It recognizes, however, that           Essential Elements
which is expected to serve as the                  addressing judicial corruption requires        of the Rule of Law
guardian of the rule of law – is itself            attention to the broader context of            • Order and Security
corrupt, anticorruption strategies are             corruption in the entire justice system,       • Legitimacy
deprived of essential measures that are            including law enforcement agencies, and        • Checks and
needed to increase the risks and reduce            in the society as a whole.                       Balances
the benefits of corruption and to punish                                                          • Fairness
corrupt acts. The resulting distortions,           The principal elements of the guidance         • Effective Application
including the impunity of corrupt                  provided in the following sections of the
individuals, undermine the rule of law,            program brief can be summarized as             USAID Rule of Law
foster public cynicism about the                   follows:                                       Strategic Framework,
integrity of government, and thus impair                                                          2008
essential capacities for sound economic,           •   It is not realistic to expect
social and political development.                      anticorruption efforts to achieve the
Conversely, strengthening judicial                     complete elimination of all corrupt
integrity and related capacities to                    acts. Rather, the goal should be a
combat corruption can have enormous                    judicial system that adheres to high
benefits. 5                                            standards of independence and
                                                       impartiality, integrity, accountability,
This program brief complements the                     and transparency. A system that
USAID Anticorruption Strategy 6 and the                incorporates these qualities
USAID Rule of Law Strategic                            minimizes opportunities for
Framework 7 by providing basic                         corruption, exercises vigilance
information for USAID officers about                   against risks, and responds decisively
key concepts and best practices for                    when corruption is detected. Such a
combating judicial corruption. The brief               system will also be more efficient,
proceeds from the Anticorruption                       fair and effective.
Strategy’s call for anticorruption goals
and activities to be incorporated into             •   Corruption in judiciaries takes many
sector-specific strategies and programs.               forms and involves a wide range of
And while it provides guidance based on                actors. Efforts to combat it,

Reducing Corruption in the Judiciary – USAID Program Brief, page 2
therefore, require thorough analysis               performance requires a well
    and varied responses, taking into                  designed monitoring and evaluation
    account:                                           plan. Monitoring and evaluation
     o The legal, political, social,                   begin with the identification of
        economic and cultural context                  program objectives, followed by the
        within which the judiciary                     selection of indicators of progress
        operates;                                      toward those objectives. The
     o In-depth knowledge of the local                 importance of country-specific, in-
        legal system;                                  depth knowledge of the justice
     o The readiness of leaders, the                   system necessitates a participatory
        motivations of stakeholders, and               approach to establishing appropriate
        the capacities of local                        objectives and indicators.
        institutions;
     o The importance of
        independence of judges,
        balanced by the need for judges            II. THE GOAL OF
        to be accountable for their
        integrity, productivity, and               EFFORTS TO
        sound management of public
        resources;                                 COMBAT JUDICIAL
     o The need for a broadly
        participatory, locally owned               CORRUPTION
        program of sound policies,                 Some corruption is found in the
        competent institutions, and                judiciaries of all countries – rich and
        transparent procedures; and                poor, democratic and authoritarian. And
     o Harmonized international                    corruption is found in all legal systems –
        support for sustained                      whether state-based or non-state,
        improvement in achieving                   formal or informal, applying civil law,
        measurable results.                        common law, religious law, or
                                                   customary law. 8 The complete
•   Programming, based on careful                  eradication of all corrupt acts is not a
    diagnosis and analysis, should                 realistic goal. Rather, the goal should be
    address judicial corruption in the             a judicial system that adheres to high
    context of broader efforts to                  standards of independence and
    improve the judicial system and                impartiality, integrity, accountability, and
    instill qualities that minimize                transparency.
    corruption and increase overall
    efficiency, fairness and effectiveness.        Judicial systems that provide timely
    Principal topics for consideration             access to fair and impartial judicial
    include:                                       services and uphold the rule of law
     o Appointment and tenure of                   consistently display qualities of
         judicial branch personnel;                independence and impartiality, integrity,
     o Case management and court                   accountability, and transparency. Judicial
         procedures;                               systems that respect these values
     o Ethics and institutional integrity;         minimize opportunities for corruption,
     o Financing the judiciary;                    exercise vigilance against risks of
     o Investigation and punishment of             corruption, and respond decisively to
         corrupt acts; and                         corruption when it is detected. Principal
     o Transparency and public                     measures include transparent and merit-
         participation.                            based selection of personnel, reasonable
                                                   compensation and working conditions,
•   Measuring the effectiveness of                 simplified procedures, internal controls,
    anticorruption activities in the               reliable statistics, objective performance
    context of overall judicial system

Reducing Corruption in the Judiciary – USAID Program Brief, page 3
standards, vigorous ethical and                    merit-based selection of judges and
disciplinary programs, adequate                    other personnel, clear codes of conduct
financing, public access to information,           and periodic ethics training, declaration
and civil society monitoring. As a result,         of assets and income, information
corrupt acts are rare and isolated                 systems on court operations and case
events. At the same time, such                     management, performance standards for
measures increase the system’s overall             judges, public complaint mechanisms,
efficiency, fairness, and effectiveness.           judicial mentors and peer pressure,
                                                   independent inspectorates and
How a non-corrupt judicial system is               disciplinary commissions, and denial of
achieved will depend on the particular             impunity for wrongful acts. 10
facts of each system’s operation. Yet,
the qualities of independence and                  Judicial Accountability: The
impartiality, integrity, accountability, and       independence of the judiciary and of
transparency are common attributes.                individual judges needs to be tempered
These attributes interact and overlap to           by the duty of accountability.
some extent. They can be summarized                Accountability has political, financial, and
as follows:                                        legal dimensions. Unpopular judicial
                                                   decisions may give rise to efforts to
Judicial independence and                          change the law on which those decisions
impartiality: The institution of the               are based and a judge whose decisions
judiciary needs to be free from the                are criticized by civil society monitors
undue influence of other institutions of           or frequently overturned on appeal may
government and society that might                  lose prestige and respect (political
affect how cases are decided. Relevant             accountability). The judiciary’s
factors include security of judicial               management of resources and internal
tenure, assurance of adequate budgetary            administration should be subject to
resources, and capacity for substantial            review and audit (financial
self-governance. And within the                    accountability). Judges, court personnel
judiciary, individual judges need to be            and lawyers should be subject to
free from the undue influence of the               disciplinary action under established
judicial hierarchy. This includes the              rules of conduct and subject to
freedom to decide cases on the basis of            prosecution and liable for damages
each judge’s understanding of the law,             under the same laws as anyone else for
subject to appellate review. 9                     willful misconduct (legal accountability).
                                                   However, broad immunity for official
Judicial Integrity: A positive self-               acts is also necessary to guard against
image within the judiciary, built on belief        abusive or vindictive suits and charges in
in the values of individual honesty and            response to good faith efforts to apply
professional ethics, is fundamental to             the law. For example, there should be a
combating corruption. As illustrated by            very high standard of demonstrable
the examples described in Section V,               willfulness for allowing a suit or criminal
experience has demonstrated that                   proceeding against a judge who finds a
judges, court personnel and lawyers                defendant innocent or guilty. 11
respond positively to thoughtful efforts
to establish high standards of ethical             Judicial Transparency: A transparent
conduct, create expectations of                    judicial system guards against corruption
behavior in conformity with those high             by exposing to public scrutiny the
standards, and maintain systems to                 operation of the judicial system,
motivate compliance. Elements of                   including measures to promote
successful judicial integrity efforts go           independence, integrity, and
beyond mere opposition to the evil of              accountability. Transparency means
corruption. They include committed                 procedures that require evidence to be
leadership by example, transparent and             presented in public hearings and require

Reducing Corruption in the Judiciary – USAID Program Brief, page 4
judges to give reasons for their
decisions in published opinions.                   Given its overarching importance to the
Transparency requires public access to             operation of a justice system, judicial
information about judicial selection,              corruption should be among the issues
assets and income of judges and other              considered in any country assessment of
senior officials, and workloads, costs,            the rule of law. Where corruption is
and productivity of the courts so that             believed to be a significant impediment
there can be effective civil society               to the fair and efficient administration of
monitoring of judicial performance.                justice, this issue merits special
Systems for enforcement of professional            attention. The USAID Guide to Rule of
ethical standards should be accessible to          Law Country Analysis provides a
complaints from members of the public              conceptual framework that recognizes
and the results of disciplinary complaints         corruption as a cross-cutting element.
should be published. And transparency              Additional detailed suggestions on how
requires vigorous news media that                  to carry out a justice sector assessment
disseminate information about the                  are provided in the World Bank’s Justice
judicial system to inform the public. 12           Sector Assessment Handbook and the
                                                   UNODC Criminal Justice Assessment
                                                   Toolkit (especially the chapter on “The
III. ANALYSIS OF                                   Independence, Impartiality, and Integrity
                                                   of the Judiciary”), and the other
                                                   assessment tools cited in Appendix A.
JUDICIAL                                           While focused on Latin America, the
                                                   Due Process of Law Foundation’s Guide
CORRUPTION                                         to Rapid Assessment and Policymaking for
Corruption in judiciaries takes many               the Control of Corruption provides helpful
forms and involves a wide range of                 matrices for organizing data and
actors. It may occur at national or local          examples of good practice.
levels, or be concentrated in certain
sectors or organizations. It may involve           The assessment tools stress the
bribes, theft of public funds or property,         importance of understanding the facts –
favoritism for friends or family, political        the environment within which the
interference, criminal extortion, or               judiciary operates, conditions within the
hierarchical pressures within the                  judiciary, and factors relating specifically
judiciary. It may be petty or grand in its         to corruption. For example, external
magnitude. And it may be isolated or               conditions include issues such as the
deeply imbedded in a pervasive culture             place of the judiciary in the structure of
of privilege and inequality. 13                    government, the security environment,
                                                   and societal attitudes and expectations.
Accordingly, efforts to combat varied              Internal conditions relate to the
forms of judicial corruption must                  governance structure of the courts,
include varied responses. While some               court administration, finance and
measures can be taken on an institution-           management systems, public information
wide basis, such as codes of ethics, many          and outreach policies, and ethical
interventions must be implemented at               standards and their enforcement.
the operational level to be effective. In          Corruption factors include the nature
order to understand where and how to               and extent of corruption, the history of
respond, it is important to start by               efforts to combat it, and the estimated
identifying the type and scope of judicial         costs and impacts. Understanding the
corruption, as well as its locus within            facts requires consideration of how
the justice system. At what stage and in           standards are articulated in laws and
what organization is the corruption                other normative instruments and also
happening? Who is involved and what                how those standards are applied in
are they doing?                                    practice.

Reducing Corruption in the Judiciary – USAID Program Brief, page 5
experience in published reports that
Because corruption is inherently                   reach highly consistent conclusions and
clandestine, the methodology of an                 contain helpful recommendations for
assessment is likely to require reliance           programming. 15 In general, these
on interviews, surveys, and observation            reports reflect the following as common
in addition to press reports, published            features of successful efforts to reduce
indices, and official records. The analysis        judicial corruption:
needs to address what corrupt acts are
taking place, the reasons why                      Address the legal, political, social,
corruption is occurring, and likely                economic and cultural context within
solutions. As noted in the World Bank’s            which the judiciary operates.
assessment handbook, institutional
weaknesses merit special attention.                •   Sustainable solutions take into
Programming to reduce corruption is                    account the social norms,
most likely to focus on institutional                  economics, politics, institutional
issues such as those addressed in
                                                       culture, and legal traditions of the
Section V of this program brief:
appointment and tenure of judicial                     country that can influence the
branch personnel, case management and                  supply, demand and tolerance of
court procedures, ethics and                           corruption.
institutional integrity, financing the
judiciary, investigation and punishment            •   Anticorruption efforts should not be
of corrupt acts, and transparency and                  freestanding. Rather, they should be
public participation, taking into account
                                                       integrated into coherent programs
both standards and their application as
well as the incentives and disincentives               to strengthen the capacity and
for implementation. A checklist of issues              effectiveness of the judiciary and
and sample questions for use in                        should take into account broader
assessments are set out in Appendix                    issues of fairness and transparency
B. 14                                                  throughout the multi-institutional
                                                       and multi-stakeholder justice
                                                       system.
IV. LESSONS
                                                   Rely on in-depth knowledge of the
LEARNED ABOUT                                      local legal system, including its
                                                   history, procedures, practices,
REDUCING                                           institutions, and relationships that
                                                   affect the administration of justice.
JUDICIAL
                                                   •   An assessment, with input from a
CORRUPTION                                             range of experts and disciplines,
Careful analysis of the facts of corrupt               should document baseline data
activities and of the environment in                   about the justice system, including
which those activities take place, as                  prevailing kinds of corrupt activities,
outlined above, will inform judgments
                                                       key actors, and apparent causes and
about what programmatic responses are
most likely to be effective in particular              consequences of corruption.
situations. Knowledge of the lessons of
experience is also important for                   •   Knowledge of the system can help
informing programmatic judgments.                      determine the appropriate
A number of development organizations                  sequencing of actions. Strengthening
and NGOs have reviewed their                           corrupt institutions before reforms

Reducing Corruption in the Judiciary – USAID Program Brief, page 6
are introduced might further
    entrench corruption in the judicial            •   Demands on institutions responsible
    system. On the other hand,                         for implementation need to be
                                                       consistent with their capacities,
    measures that depend on capacity
                                                       usually accompanied by capacity
    (e.g., for producing accurate                      strengthening efforts and increasing
    statistics about system                            responsibilities.
    performance) obviously cannot be
    implemented if the responsible                 Give high priority to the
    institutions lack the necessary                independence of judges to decide
    capacity.                                      cases on their merits, balanced by the
                                                   need for judges to be accountable
                                                   under high standards of integrity,
•   An assessment should include input             productivity, and sound management
    from those who know the judicial               of public resources.
    system best – those who operate it
    (judges and court staff) and those             •   Judicial independence involves issues
    who use it (lawyers and litigants).                of the selection of judges, security
                                                       of tenure, promotion and transfers,
Consider the readiness of leaders to                   financial and administrative
take risks of confronting corrupt                      autonomy, and safeguards against
interests, the strength of motivations                 interference through manipulation
and incentives for change of various                   of budgets, salaries, or working
stakeholders, and the capacity of                      conditions.
local institutions to implement
change.                                            •   Judicial accountability involves
                                                       responsibility for compliance with
•   Sustained commitment from senior                   performance standards, the
    levels of the judiciary and leadership             applicable code of professional
    by example are especially important                conduct, and established legal
    because achieving a non-corrupt                    norms. While judges must be
    judiciary is a complex and time-                   accountable, it is a constant
    consuming process. Intense                         challenge to find the appropriate
    opposition from vested interests is                balance so that accountability does
    likely and attitudes among judges                  not undermine independence.
    accustomed to existing collegial
    norms are often resistant to change.           •   Even the most carefully crafted
    (Brief tenure in key leadership                    structures for independence and
    positions might warrant an initial                 accountability can be abused.
    focus on creating a more sustainable               Beyond specific rules and
    environment for a long-term effort.)               procedures, these values need to be
                                                       reinforced by attitudes,
•   Identifiable stakeholder interests                 expectations, and continuous
    should be engaged within the public                vigilance through transparent
    sector and civil society, including                processes and concerned citizens.
    potential champions in the executive
    and legislative branches and in                Encourage a broadly participatory,
    universities, law-related research             locally owned program that fosters
    and policy advocacy organizations,             adherence to high standards of
    legal services groups, NGOs,                   judicial integrity through sound
    professional and business                      policies, competent institutions, and
    associations, and the media.                   transparent procedures.

Reducing Corruption in the Judiciary – USAID Program Brief, page 7
•   A normative framework for the                              Singapore’s Ten Commandments
    judiciary should strive for clear and                             of Judicial Integrity
    objective standards.
                                                  Singapore, which has made important strides in judicial
•   Management practices and systems              reform and reducing public sector corruption, has adopted a
    should minimize opportunities for             set of ten “commandments” to frame its approach to judicial
    corruption through procedures that            integrity. This compressed list captures much of what has
    limit possible favoritism (e.g.,              been learned about successful intervention to reduce judicial
    random case assignment,                       corruption:
    accountability for case files),
    standardized performance                      One: Transparency in the selection of judges, based on merit,
    guidelines, and timely collection and         competency and experience.
    analysis of data.
                                                  Two: Adequate remuneration for judges and court staff.
•   Codes of ethics should be given
    practical vitality through educational        Three: An independent yet accountable judiciary, with the
    programs, judicial mentoring and              courts free of external influence in judicial decision-making,
    counseling, citizen complaint                 but subject to independent audit of the use of public
    procedures, and investigative and             resources.
    disciplinary mechanisms.
                                                  Four: A coherent system of case management which
•   Transparency should extend to all             eliminates backlogs, shortens waiting time, and diminishes
    aspects of the judicial system:               vulnerability to mismanagement.
    selection of judges, openness of
    proceedings, publication of                   Five: Performance standards for the judiciary and the judges,
    decisions, public access to                   with time-based, volume-based and disposal-based indicators.
    information about court operations
    and performance, disclosure of                Six: Consistent and objective criteria in the administration of
    assets and income of judges and               justice, including in fines, fees and sentences.
    other senior judicial officials, and
    civil society monitoring of judicial          Seven: Clear ethical markers and guidelines for judges.
    performance.
                                                  Eight: A common vision for the judiciary and leading by
Foster harmonized international                   example by the Chief Justice to assure unity of vision and
support for locally owned programs,               purpose.
including enhanced incentives for
sustained improvement in achieving                Nine: Full transparency in the justice process at all times,
measurable results.                               including public hearings, documented decisions open to
                                                  public scrutiny, and right of appeal to the higher courts.
•   Assistance programs are temporary;
    they should support enduring local            Ten: Learn from lessons of forward-looking institutions
    capacity for improved performance.            through strategic partnerships with progressive judiciaries and
                                                  law-related organizations.
•   Harmonized donor support for local
    strategies increases prospects for
                                                   Source: Chua, Cher Yak, “Singapore’s Three-
    sustainable development and opens
                                                   Pronged Program to Combat Corruption:
    possibilities for complementarity of           Enforcement, Legislation and Adjudication,”
    efforts and rewards. 16                        OECD, 2007,
                                                   http://www1.oecd.org/daf/asiacom/pdf/nl02-
                                                   cpib.pdf. 17

Reducing Corruption in the Judiciary – USAID Program Brief, page 8
resources can USAID provide, and over
V. PROGRAMMING                                     what period of time? In light of such
                                                   diversity, this section seeks to provide
OPTIONS AND                                        general programming guidance
                                                   organized around specific judicial
RISKS                                              corruption issues. It is recognized that
As in any policy reform, USAID support             not all issues will be addressed in all
for integrating themes of increased                programs. Also, the importance of
integrity and reduced corruption in the            addressing judicial corruption in the
judiciary begins with a diagnosis of the           context of broader efforts to improve
problem and the design of a program to             the judicial system bears repeating. The
respond to that diagnosis, followed by             following topics correspond to the
program implementation and evaluation              checklist of issues and sample questions
of the results achieved. Throughout this           set out in Appendix B and the sample
cycle, management of the process will              indicators in Appendix C.
require attention to the participants and
stakeholders, open and flexible policy             A. APPOINTMENT AND
dialogue, strategic timing of program              TENURE OF JUDICIAL
actions, and effective communication. 18           BRANCH PERSONNEL
                                                   Unqualified judges who owe their
                                                   positions to political patronage, or even
                                                   corrupt acts, pose an enormous
                                                   obstacle to achieving a judiciary that will
                                                   reflect high standards of independence,
                                                   integrity, accountability, and
                                                   transparency. A merit-based
                                                   appointment system is a high priority.

                                                   Judicial selection should involve
                                                   independent screening of the
                                                   qualifications of candidates for judicial
 USAID, Policy Reform Lessons Learned 2007
                                                   appointment. Some countries have
                                                   established judicial councils that perform
The preceding section described major              this function along with other duties of
issues that have been identified in efforts        court administration. Other countries
to reduce judicial corruption. The                 have established commissions with the
lessons learned from this experience are           sole function of producing slates of
relevant primarily for consideration in            qualified candidates to fill vacancies. 19 A
the diagnostic phase of the program                third approach is to require candidates
cycle and in the establishment of                  to complete a course of academic study
program objectives. This section of the            and pass examinations in order to be
brief describes tested approaches and              eligible to become a judge. The practice
practices that merit consideration in              of electing judges, followed by many
program design and implementation and              states in the United States, is generally
call attention to risks associated with            considered to pose unreasonable risks
these approaches and practices.                    of politicizing the judiciary. 20

The specific content of the USAID                  All of these approaches are vulnerable
program in any country will be                     to the risk of being politicized or
determined by many factors. What are               otherwise distorted. It is important,
the priorities for the country and for             therefore, that the selected approach to
USAID? What needs are being met by                 judicial selection be implemented with
local actors and other donors? What                the greatest possible transparency,

Reducing Corruption in the Judiciary – USAID Program Brief, page 9
ideally under published rules and criteria         B. CASE MANAGEMENT AND
that are developed in a participatory              COURT PROCEDURES
manner. Members of the nominating
                                                   Procedures that minimize opportunities
body should themselves be selected in a
                                                   for favoritism, delay, and abuse diminish
transparent manner; the qualification of
                                                   opportunities for corrupt treatment of
candidates for judicial appointment
                                                   litigants. Many countries have
should be publicly and independently
                                                   undertaken broad procedural reforms,
reviewed by a bar association or other
                                                   involving public oral procedures, codes
civil society group; and judicial
                                                   of evidence, and increased scope for
appointments and appointment
                                                   advocacy. In some cases, enthusiasm for
procedures should receive media
                                                   these broad reforms has provided
attention.
                                                   opportunities for building in safeguards
                                                   against corruption. Where such a
There is a strong correlation between
                                                   process is underway, donor support
judicial independence and the assured
                                                   should include features that diminish
duration of judicial tenure. Where a
                                                   risks and increase costs of corruption
judge serves at the pleasure of political
                                                   and foster institutional integrity.
authorities or has a brief term,
                                                   However, a fundamental change in a civil
especially one closely corresponding to
                                                   or criminal procedure system (such as
that of the appointing authority, the
                                                   changing from written to oral
judge is highly vulnerable to political
                                                   proceedings) is a massive, lengthy and
interference. Life tenure (often subject
                                                   expensive undertaking in which local
to a mandatory retirement age and good
                                                   leadership is essential, with donor
conduct) or long fixed terms are
                                                   assistance playing a supporting role.
associated with judicial independence.
                                                   Whether pursued in the context of a
Retaining and preserving the
                                                   broad procedural reform or in more
independence of capable judges involve
                                                   narrowly focused efforts, there are
more than protection against dismissal.
                                                   some issues that frequently arise.
Safeguards against salary reduction or
                                                   Historically, a particular area of abuse
punitive reassignment, reasonable
                                                   has been the discretion to assign a
working conditions (salary, facilities and
                                                   particular case to a particular judge. A
equipment, staff support and workload),
                                                   significant reform in many multi-judge
and fair opportunities for advancement
                                                   courts (as in major urban centers) has
also contribute to an environment
                                                   been the installation of a credible
conducive to continuity and consistency
                                                   system for random assignment of cases
in judicial employment. These same
                                                   among judges. Another frequent cause
considerations are also important to
                                                   of corruption is a lack of control over
attracting and retaining a capable staff
                                                   official files that constitute the record of
with incentives to avoid corruption.
                                                   the case. Where clerks of individual
Developing a cadre of highly qualified
                                                   judges maintain case files in unsecure
court administrators and other
                                                   environments there is a substantial risk
professional staff and assuring
                                                   that documents, or even entire files,
satisfactory working conditions for
                                                   might disappear. A records center
judicial staff are rarely given sufficient
                                                   staffed by records management experts
priority, even though court employees
                                                   who are assigned responsibility for
are important actors in determining the
                                                   maintaining accurate and up-to-date
competence and integrity of the
                                                   case files not only increases efficiency
judiciary.
                                                   and conserves space. It also eliminates a
                                                   potential source of corrupt manipulation
                                                   of judicial records.

Reducing Corruption in the Judiciary – USAID Program Brief, page 10
risks and needs for system changes that
      Case Management Reform in                    can reduce those risks.
          Guatemala and Serbia
The establishment, with USAID support, of          Efforts to delay proceedings are often
a Clerk of Courts Office in Guatemala City         seen at the stage of enforcing a
in 1998 has virtually eliminated the               judgment. There are obvious incentives
problem of lost case files, removed                for a losing party in a lawsuit to seek to
opportunities for judge shopping, reduced          delay enforcement of the court’s
congestion, monitored the time consumed            judgment. For example, delay may
by various court processes, and generated          provide an opportunity to conceal or
reliable and consistent statistics and             transfer assets; the rate of interest on
reports. This effort brought together              an unpaid judgment may be below the
improved systems, modern technology, and           market rate. It is equally obvious that a
competent human resources.                         judicial system’s failure to enforce its
                                                   judgments is a denial of meaningful
Serbia’s commercial courts, “long a bastion        access to justice. 22 There are many
of corruption,” introduced an automated            kinds of weaknesses that can provide
case management system in 2004 that                opportunities for delay in the
“selected judges at random, charged                enforcement of judgments. Often in the
litigants standard fees, and allowed citizens      forefront are procedural weaknesses
to track the progress of their cases online.       that lend themselves to corrupt
The resulting increase in transparency,            manipulation, such as complex rules,
efficiency, and fairness caused a 24 percent       broad discretion of enforcement
reduction in the inventory of pending cases        personnel, excessive opportunities for
during 2006, and between 2004 and 2006 a           dilatory appeals, and inadequate access
38 percent reduction in the time needed to         to information. Corrective measures
enforce a contract.”                               (which need to be taken in the context
                                                   of broader reform measures) often
Sources: Guatemala: USAID Anticorruption           include simplifying required procedures,
Strategy; Serbia: Commission on Legal              clarifying the duties of judgment debtors
Empowerment of the Poor
                                                   to disclose and surrender assets,
                                                   expanding available options for seizing
Also important are management
                                                   and liquidating assets and, most
information and statistical systems that
                                                   important, diligent judicial oversight of
measure the productivity of judges and
                                                   the execution process and timely
court personnel against carefully
                                                   rejection of frivolous appeals.
formulated performance standards.
Research suggests that most delays in
                                                   A frequently encountered risk is the
litigation are attributable to lax
                                                   desire of judiciaries to automate
management by the judge in keeping the
                                                   processes, records systems and
case moving toward decision. 21
                                                   statistical data bases before they
However, a pattern of excessive delays
                                                   adequately review and improve existing
in processing cases could have various
                                                   practices. It is important that the
causes, including corruption. There are
                                                   efficiency of procedures and the quality
many opportunities for corrupt delay
                                                   of data be assured before proceeding to
throughout the processing of a case,
                                                   automate systems that, absent such
such as in the service of process, the
                                                   review, are likely to prove inadequate.
calling of witnesses, the scheduling of
hearings, and rulings on the production
of physical and documentary evidence.
Closed case surveys to review the
actual functioning of the judicial process
can be valuable in identifying corruption

Reducing Corruption in the Judiciary – USAID Program Brief, page 11
C. ETHICS AND                                      credibility of efforts to infuse the entire
INSTITUTIONAL INTEGRITY                            justice system with a commitment to
                                                   institutional integrity. 24
Among the several models of ethics
codes for national judiciaries listed in
                                                   Ethics cannot be treated as a “stand
the bibliography at Appendix A, the
                                                   alone” issue within the judiciary. It
most widely used are the 2002
                                                   needs to be integrated into the
Bangalore Principles of Judicial
                                                   operations and incentives of the
Conduct. 23 Detailed guidance is
                                                   institution. In order to convey a clear
contained in a commentary on the
                                                   message that ethical conduct is
Bangalore Principles prepared in 2007
                                                   important, it needs to be a factor in
by the Judicial Integrity Group. This is a
                                                   performance evaluation and
broadly based group of Supreme Court
                                                   advancement. And the message needs to
Justices and other senior judges that
                                                   be reinforced in systems of internal
meets under the auspices of the United
                                                   controls for the management of official
Nations Office of Drugs and Crime. This
                                                   property, funds and other resources, in
group has also developed draft
                                                   efforts to narrow overly broad grants of
principles of conduct for court
                                                   discretion that could be easily abused,
personnel. Citations to the Bangalore
                                                   and in consistent approaches to
Principles commentary and draft
                                                   investigating and acting on alleged
principles of conduct for court
                                                   violations.
personnel are included in Appendix A.
                                                          Judicial Integrity in the Dominican Republic
Just as laws do not, by themselves,                  Against a background of low and declining scores on
produce desired results, the adoption of             corruption indices and the shock of a major banking
a code of ethics is no more than a first             scandal in 2003, the President of the Supreme Court
step in achieving ethical conduct in the             engaged the heads of the national prosecution service and
judiciary. Leaders of the judicial                   office of public defense in a common effort to establish
institution need to make clear that the              institutional integrity in the administration of justice. With
ethical rules will be applied, and that              USAID support, a participatory diagnosis of each
judges and staff will be expected to                 institution was undertaken. Working groups were formed
know them and adhere to them.                        to address the findings of the diagnostic studies. A
Successful ethics programs include initial           USAID-sponsored visit to the United States enabled the
training and periodic follow-up for                  three working groups to observe how issues of
concerned personnel, mechanisms to                   institutional integrity were managed in state and federal
provide guidance to those confronting                judicial institutions and helped forge a shared vision and
ethical questions, complaint and                     collaborative spirit among the working groups. Initial steps
enforcement procedures, and                          have involved the articulation of goals and objectives and
publication of decisions on alleged                  the identification of priorities for action. The internal
ethical violations.                                  working groups are reaching out to the workforce and
                                                     enthusiasm is spreading, grounded in the realities of each
In addition to a comprehensive ethics                institution and building from within. Continuity of
program for judges, the judiciary                    leadership and broad participation have been important
normally has important responsibilities              sustaining influences. More than 1,500 individuals in the
for oversight of the ethics programs of              three institutions have participated in creating programs
judicial staff. Sometimes this oversight             for enhancing institutional integrity. Initial achievements
role extends to prosecutors, public                  include a code of conduct and revised disciplinary
defenders, investigators, and even to the            procedures. Work continues on goals, actions, and
legal profession as a whole. Disciplinary            performance indicators, aligned with budgetary resources,
actions of bar associations and other                to include integrity issues into training, performance
professional organizations are often                 evaluation, and advancement decisions, to clarify
subject to judicial review. Vigorous                 standards for the exercise of discretion, and to assure
ethics oversight by the judiciary                    sustainability.
contributes to the effectiveness and

Reducing Corruption in the Judiciary – USAID Program Brief, page 12
As noted above in Section IV, one of the           consistency as to which entities are
key lessons learned about reducing                 included in the scope of the judicial
judicial corruption is the need to                 budget or whether the budget can be
address broader issues of fairness and             augmented by fines, fees, or other
transparency throughout the multi-                 income of the judiciary. Some countries
institutional justice system within which          prohibit diminution of the judicial
the judiciary operates. In this regard, the        budget from year to year, or limit
role of the judiciary in many countries            reductions in certain budget categories
includes reviewing the decisions of                such as judicial salaries. There is also
administrative agencies, the operation of          broad variance in the role of the
bar association disciplinary systems, and          judiciary in administering its budget.
the outcomes of alternative dispute                However, the broad international trend
resolution proceedings (ranging from               is toward increased financial autonomy
neighborhood mediation centers to                  for the judiciary in the interest of
international commercial arbitration               fostering judicial independence, subject
tribunals). This broad responsibility of           to safeguards to assure accountability
the courts to assure adherence by other            for the resources entrusted to the
institutions to the rule of law underlines         judiciary. 26
the need for the judiciary to possess
both the will and the capacity to                  Often, existing systems for financing the
confront not only judicial corruption but          judiciary are based in national
also corruption in a wide range of                 constitutions and longstanding traditions
institutions that exercise legal authority         that are highly resistant to change.
subject to judicial review. 25                     Nevertheless, USAID officers should be
                                                   alert to problems with several existing
D. FINANCING THE                                   practices. For example:
JUDICIARY
The judiciary needs adequate and                   Set percentages of the national
assured financing in order to combat               budget may provide an excess of
corruption. There are costs associated             resources in some years and inadequate
with attracting good people, providing             funding in other years for reasons that
them with reasonable working                       may be unrelated to the needs or the
conditions, and developing and                     performance of the judiciary and
implementing management systems and                preclude use of the budget as a tool for
educational programs that will further             encouraging improved performance.
the values and practices of
independence, integrity, accountability,           Augmentation of budgets with
and transparency.                                  court fees and fines can create
                                                   perverse incentives that limit access to
International practice in assuring                 justice by the poor and pose risks of
adequate and continuous financing for              inadequate transparency.
the judiciary varies considerably and
country-to-country comparisons are                 Authority outside the judiciary for
difficult. Budget levels are determined in         budget formulation and
some countries by reference to a fixed             implementation can be exercised in
percentage of the government budget.               ways that undermine judicial
In other countries, a Ministry of Justice          independence and constitute political
or other executive agency decides on               interference.
the budget to be proposed to the
legislature. In still other countries, the         Three principles should be given
judiciary has broad autonomy and its               emphasis in programs that address
budget recommendations are generally               judicial financing, based on
accepted by the legislature. There is no           contemporary best practice:

Reducing Corruption in the Judiciary – USAID Program Brief, page 13
First, judicial budgets should be                  E. INVESTIGATION AND
based on performance                               PUNISHMENT OF CORRUPT
management analysis, reflecting the
volume of case flow and the efficiency             ACTS
with which cases are managed. 27                   The legal correctness of a judicial
                                                   decision can be tested by appeal to a
Second, a substantial and direct role              higher court. Distinct from the appellate
for the judiciary in the formulation               process, it is important that the judiciary
and administration of the judicial                 also have access to administrative
budget is important, among other                   bodies with specialized knowledge of
reasons, in order to diminish the                  the judicial organization and its functions
vulnerability of the judiciary to corrupt          and the necessary skills to investigate
political pressure from other branches             and adjudicate complaints of misconduct
of government. 28                                  by judges and court personnel. Usually,
                                                   these administrative bodies are situated
Third, transparency in the                         within the judiciary – sometimes under
formulation and administration of                  the Supreme Court and sometimes
the judicial budget is crucial to                  under a judicial council. In countries
assuring sound, disciplined, and                   where a justice ministry has
accountable management by the                      responsibility for administrative
judiciary with respect to the allocation           management of the courts, the ministry
and expenditure of public funds. 29                may be the site of the judicial discipline
                                                   system. The challenge in all these
                                                   systems is to find the appropriate
                                                   balance between protecting the judicial
                                                   institution against corrupt individuals
                                                   and protecting accused individuals (who

                                 Performance-Based Budgeting in Jordan
     The annual budget for the judicial system (civil and criminal courts, prosecution service, court
     registrars, notarial services, judicial training institute, and judicial council) is administered by the
     Ministry of Justice. Since 2005 the Ministry has served as a pilot for performance-based budgeting
     in the Jordanian public sector. Its action plan involves five steps:

     1. Develop justice sector programs with goals and objectives.
     2. Consult on and select performance indicators that measure impacts and outputs of justice
        activities and services.
     3. Establish systems and capacities to collect and analyze performance data.
     4. Modify existing financial management information systems to assure that they effectively
        support performance-based budgeting.
     5. Align organizational structures and functions with the goals of the performance-based budget
        as a basis for managing for results.

     The broad objective is to make the budget process a management tool for achieving substantial
     improvements in the quality of decisions for the administration of justice. The highly participatory
     procedures, alignment of expenditures with policy goals and identified actions, and monitoring of
     results achieved also provide safeguards against corrupt or merely inappropriate allocations and
     management of resources available for the judiciary.

     Source: Webber, David, Good Budgeting, Better Justice, World Bank, 2007.

Reducing Corruption in the Judiciary – USAID Program Brief, page 14
are vulnerable to unfounded charges) in            criminal acts. 31 Yet, the judicial and
their rights to due process of law.                enforcement institutions often have
                                                   inadequate capacity to manage major
Article 11 of the United Nations                   corruption cases involving complex
Convention against Corruption, quoted              transactions, voluminous records, and
at the beginning of this brief, may offer          sophisticated concealment techniques.
an entry point. It imposes a duty to take          In turn, their limited capacity can
measures “to strengthen integrity and to           undermine their willingness to confront
prevent opportunities for corruption               powerful political and economic
among members of the judiciary.”                   interests. Reluctance to act based on
Strengthening capacities to fulfill this           weak capacity is likely to create a strong
duty is an appropriate subject for                 perception of judicial corruption. Again,
international cooperation and technical
                                                       Contrasting Approaches to Judicial Discipline
assistance.
                                                                      in Kenya and Nigeria
                                                   In Kenya, a new Chief Justice created an ad hoc committee
Punishment for corrupt acts should be
                                                   in March 2003 to look into allegations of widespread
fair and consistent. Sometimes, judges
                                                   judicial corruption. On the basis of a six-month
and other corrupt officials have been
                                                   investigation and closed hearings, the committee implicated
permitted to resign in the face of
                                                   a large number of judges and court staff in a variety of
corruption charges or to accept
                                                   corrupt acts. At the recommendation of the Chief Justice,
dismissal on other grounds (such as
                                                   the President suspended the named judges. One judge was
inattention to duties), with the implicit
                                                   eventually reinstated; some retired voluntarily; and some
understanding that their departure will
                                                   were removed after protracted delays. While the effort
be the end of the matter. And similar
                                                   succeeded in removing some sources of corruption in the
conduct has been treated more harshly
                                                   courts, some international observers have criticized this
in some cases than in others. Such
                                                   approach for its lack of grounding in institutional reform
practices suggest a tolerance of
                                                   and its procedures that involved delay and little regard for
corruption and undermine the
                                                   the security of tenure and due process rights of those
legitimacy of the judicial system. A lack
                                                   accused.
of consistent response may reflect the
weak capacity of the responsible
                                                   In Nigeria, the Chief Justice responded to allegations of
institutions to pursue cases to
                                                   judicial corruption by launching a program on strengthening
conclusion. Maximum transparency,
                                                   judicial integrity in 2001. The program was integrated into
including the publication of disciplinary
                                                   a broad justice strengthening initiative that was
rulings, can promote fairness and
                                                   coordinated with relevant national institutions and
consistency. In addition, consideration
                                                   supported by USAID and other international partners. The
should be given to needs to strengthen
                                                   program involved a comprehensive baseline assessment of
judicial capacity to manage corruption
                                                   types, locations, levels, and costs of judicial corruption.
cases.
                                                   Action plans were developed for nine pilot courts to
                                                   improve performance, strengthen the citizen complaint
Beyond corruption within the judiciary,
                                                   system, and increase public confidence in the courts. The
there has long been broad agreement
                                                   program sought to transfer planning, implementing and
that success in combating corruption
                                                   monitoring skills to the pilot courts and extend lessons
anywhere “must include measures that
                                                   learned to additional courts.
reduce the opportunity for – and the
benefits of – corruption, increase the
                                                   The World Bank’s 2008 report, Governance Matters (see
likelihood that it will be detected, and
                                                   note 2), indicates that, while both Kenya and Nigeria rank
make punishment of transgressors more
                                                   low on rule of law and control of corruption, Nigeria made
likely.” 30 Ultimately, the effectiveness of
                                                   progress in both areas since 2003, while Kenya had not.
all such measures will depend upon the
capacity and the willingness of the
                                                   Sources: UN Anticorruption Toolkit, Transparency International
courts and related supporting law
                                                   Global Corruption Report 2007.
enforcement institutions to collect,
present and rule on evidence of alleged

Reducing Corruption in the Judiciary – USAID Program Brief, page 15
You can also read
NEXT SLIDES ... Cancel