Institute for Judicial
Independence

Quantifying Judicial Independence

The Index of Judicial Independence (IJI): A Practical Tool
To Measure and Compare the Independence of Judiciaries
 
by Aibek Davletov and Fred Huston [1]
Introducing the Index of Judicial Independence (IJI)

 

A major challenge for any civilized country is to create a political, economic and social environment for its people that allows them to feel comfortable, free and safe. Ideally, this environment is created for everyone to enjoy equally, regardless of race, sex, political affiliation, health, financial condition and other possible criteria.

 

Efforts to create such an environment in any country are possible where there are both democratic rule and an achieved level of rule of law that provide for full and timely protection of each person’s rights and legitimate interests.  This desired environment is achievable where a country’s judicial system and its individual judges are responsible and responsive to peoples’ fundamental needs to have their legal disputes considered and resolved fairly by unbiased, independent decision makers.

 

Independence of judiciaries is an a priori and fundamental need. Where relatively more independent courts and judges are able to engender respect for laws and their substance, more progressive development happens, i.e. stable political and economic growth is supported and multifaceted social needs are better met.  Pure judicial independence, of course, is theoretical, nonexistent anywhere in the world. Many countries, however, have pursued a theoretical goal of pure judicial independence and have made notable strides creating relatively independent judiciaries that do successfully nurture healthier, more stable political, economic and social environments.[2]

 

Time/value demands within modern societies require reliable information presented succinctly, to assist in policy and other decision making. A widely recognized Index of Judicial Independence, or IJI, expressed as a simple numerical ranking, will help focus attention on where a country stands with regard to its efforts to create an independent judiciary and information generated creating an IJI will provide guidance about how to improve independence.

 

Others have carefully considered indexing judicial independence and producing overall numerical ratings, but restrained from doing so because of a myriad of perceived complexities[3].  At this time, however, in light of the broad application and usefulness of other numerical indices that are based upon surveys of stakeholders, such as the Global Competitiveness Index[4], developing a numerical IJI makes sense, as numerical ranking of a country’s judicial independence is a missing and essential tool for stakeholders and policy makers.

 

Producing IJIs will allow broad numbers of people (who commonly are not judicial or legal experts) to understand information and opinions collected from a country’s own people (who are exposed to activities of their courts), allowing everyone to see where a country stands concerning independence of its judiciary and helping those interested in improving independence focus on the types of activities more likely to increase it.

 

How can relative independence be measured and ranked?

 

Approaches and practices of countries trying to create independent judiciaries are not merely general examples, but their steps so far undertaken and results can be measured and ranked to provide an objective IJI. Indexing the relative independence of judiciaries is possible using the tool presented at the end of this article, the Index of Judicial Independence or IJI.

 

Generally, an IJI is to be generated for any country based upon results of a minimum 100 person survey including a cross section of both experts and ordinary citizens actively participating in, using or otherwise familiar with a particular country’s courts, i.e. those people seeking or responsible to protect a full range of social, political and/or economic rights or legal interests. The IJI is designed to incorporate evenly the representative opinions of a cross-section of stakeholders within the society, without a weighted emphasis on interests of those involved in business or economic disputes only. [5]  A country’s Index of Judicial Independence (IJI) objectively takes into consideration opinions of those involved in all common disputes (including criminal, family law, inheritance, and electoral disputes) that usually outnumber by several orders of magnitude economic cases registered and addressed by judiciaries in any particular country.

 

The IJI survey questions and derived ranking is based on well-known principles of judicial independence enshrined in numerous international declarations and charters.[6]   In other words, the Index of Judicial Independence uses criteria adopted and generally applicable in a majority of the world’s countries.

 

The resulting IJI provides an objective picture about the relative independence of a country’s judiciary reflected in a simple, overall numerical ranking.

 

What exactly is the IJI?

 

The IJI is determined and based upon 30 criteria surveyed that allow a comprehensive and detailed picture of a country’s judicial system. The survey includes blocks of questions related to (1) the mechanism for selection and appointment or election of judges, (2) the legal status of judges, (3) accountability of judges, (4) dismissal of judges, (5) social benefits, protection and security for judges, (6) professional development for judges and court personnel, (7) judicial self-governing organs, (8) judicial system financing and (9) the powers of a judiciary relative to the powers of executive and legislative law making.

 

A minimum of 100 people are to be surveyed in each country: 10 court personnel, 10 active trial attorneys/criminal defense lawyers, 10 in house counsel, 10 media representatives, 10 private individuals/representatives of households, 10 representatives of non-governmental entities, 10 owners or managers of larger businesses (greater than 100 employees), 10  owners or managers of small and medium businesses (less than 100 employees), 10 government officials, (not including law enforcement organs), 10 representatives of law enforcement organs (prosecutors, police, representatives of penal institutions) and/or representatives of inmates.

 

The following Index of Judicial Independence is a table of questions, short answers and accrued points (subject to revision based upon future use). A country receiving a higher point total is ranked higher.

 

 

Index of Judicial Independence (IJI)

 

No. Criteria 3 Points 2 Points 1 Point
1. The independent status of the judiciary is recognized by law In the Constitution In an adopted Law other than the Constitution By regulation or other normative document
2. A governmental body exists that is responsible for screening and nominating judges Exists Exists but is not functional or partially functions Does not exist
3. Members of the governmental body responsible for screening and nominating judges are from the judiciary itself 51-100% 25-50% 0-24%
4. The governmental body responsible for screening and nominating judges makes it decisions independently from executive, legislative and/or presidential branches of power Completely independent Somewhat independent Dependent
5. A governmental body exists that is responsible for appointing judges Exists Exists, but is not functional or partially functions Does not exist
6. The governmental body that appoints judges is made up of representatives of the judiciary. 51-100% 25-50% 0-24%
7. The governmental body that appoints judges makes its decisions independently from executive, legislative and presidential branches of power Completely independent Somewhat independent Dependent
8. A governmental body exists responsible for dismissing judges Exists Exists but does not function or partially functions Does not exist
9. The governmental body responsible to dismiss judges is made up of representatives of the judiciary 51-100% 25-50% 0-24%
10. The governmental body responsible for dismissing judges makes its decisions independently from executive, legislative and presidential branches of power Completely independent Slightly dependent Completely dependent
11. A judicial community entity (union, association, council of judges, other) exists that is responsible to represent/ defend the interests of judges Exists Exists but is not functional or partially functions Does not exist
12. The judicial community entity exercises its authority to represent/defend interests of judges Yes Sometimes No
13. The government adequately finances the judiciary Provides 71-100% of its needs Provides 31-70% of its needs Provides from 0-30% of its needs
14. The government provides adequate wages to judges Wages fully cover the needs of a judge and the judge’s family Wages partially cover the needs of a judge and the judge’s family Wages are clearly insufficient to meet the needs of the judge and the judge’s family
15. The government provides adequate social guaranties and pensions to judges Yes Partially No
16. Judges are appointed for life or to a definite age limit Yes No, but Judges are appointed for more than 10 years No, Judges are appointed from 1year up to 10 years
17. A judge can be transferred to a different judgeship in a different court without agreement of the judge No Yes, but only in special circumstances established in an adopted Law Yes
18. A judge can be dismissed in accordance with provisions of law Established in the Constitution In a Law(s) In regulations or other normative acts.
19. Judges have immunity In all circumstances Only with regard to actions related to court proceedings Do not have immunity
20. Judges are disciplined Only by judicial bodies By judicial bodies and by other governmental bodies By other (non-judicial) governmental bodies
21. Judges have discretion where rights or laws are missing Yes Sometimes, where a law permits No
22. Courts have the right to determine that actions of other branches are unlawful and exercise this right Yes Limited as specified by law No
23. Mandatory compliance with orders of a higher court: Are not mandatory Are mandatory where specified by a Law Are mandatory
24. Accountability of judges to other government officials  to explain why a decision was entered: No requirement other than as set forth in the judge’s written decision Limited explanation(s) required as set forth in a relevant Law Must explain decision when requested to do so by government official
25. Opportunities for government officials to influence decision making processes: No opportunities exist Opportunities may exist but are not clear Clear opportunities exist
26. Opportunities for private persons and entities  to influence decision making processes: No opportunities exist Opportunities  may exist but are not clear Clear opportunities exist
27. The existence of real penalties against government officials for interference in judicial processes: Real consequences  against governmental officials for interference in judicial processes are provided by law and are used Consequences exist but they are not real or enforced No real consequences against government officials interfering in judicial processes have been provided
28. Publication of Judicial decisions: All judicial decisions are published Judicial decisions are published in a limited fashion Judicial decisions are not published
29. Recording of court proceedings: All court proceedings are recorded  verbatim Court proceeding are recorded at the discretion of the judge Court proceedings are not recorded verbatim
30. Improved qualifications of judges: Mandatory and Systematic Mandatory but not systematic (addressed through special trainings, seminars) Not mandatory, not systematic (addressed by special trainings, seminars)

 

The Index of Judicial Independence is calculated by the total points divided by a maximum score of 90 and may be reflected as a percentage.

[1] The Index of Judicial Independence or IJI is a practical tool offered for use by its authors, Aibek Davletov and Fred Huston.  © All rights reserved.  Mr. Davletov is a former justice of the Supreme Court of the Kyrgyz Republic.  Mr. Huston is a non-practicing attorney licensed by the State of Colorado. They are united by their lengthy relevant experience and ongoing commitments to helping improve judiciaries and spreading the rule of law.  Either may be contacted through the International Development Law Organization (www.idlo.int) or directly by e-mail at Aibek-davletov@yandex.ru or fredhuston@gmail.com.

 

[2] For instance, de facto judicial independence positively influences GDP growth. See Economic Growth and Judicial Independence: Cross Country Evidence Using a New Set of Indicators, Lars P. Feld and Stefan Voigt. February 28, 2002.

[3] See the Judicial Reform Index assessment tool created by ABA-ROLI in 2001 and described in http://www.americanbar.org/advocacy/rule_of_law/publications/assessments/jri.html and their assessments using the tool.

[4] The World Economic Forum’s Global Competitiveness Index (GCI) is a well-recognized and generally accepted ranking method related to business environments within many countries that reveals deficiencies and provides excellent guidance and insights about how countries are able to improve business environments and a particular country’s relative ranking.  During yearly surveys that result in the GCI, business representatives respond to several questions about the independence of judiciaries as part of the much broader survey resulting in the ranking of business environments.  However, a direct and detailed focus on producing an objective ranking of the independence of judiciaries is not attempted through the GCI; the IJI is a separate but complementary effort to provide a similarly useful tool to generate similarly useful information.

[5] The above described CGI is based upon the solicited views and answers primarily of a country’s business community.

 

 

[6] E.g. Basic Principles on the Independence of the Judiciary adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985

There are no comments

Добавить комментарий

Для отправки комментария вам необходимо авторизоваться.