TI Policy Position

Abstract

"1. Accountability to whom and for what? In everyday terms, accountability is simply the ability to hold an individual or institution responsible for its actions. The question for the judiciary is accountability to whom and for what? Broadly speaking, the judiciary must be accountable to the law, in the sense that the decisions made are in accordance with the law and are not arbitrary. Like other branches of government, it must also be accountable to the general public it serves. Holding the judiciary accountable to an external body, such as a ministry of justice, however, raises questions as to whether this same body could be used to undermine judicial independence. External accountability mechanisms can expose the judiciary to the risk of harassment or intimidation by aggrieved parties. On the other hand, reliance on internal accountability mechanisms alone raises issues of legitimacy and transparency. 2. How to achieve judicial accountability Fostering a culture of independence, impartiality and accountability among judges is a vital step towards ensuring the overall integrity of the judiciary. This is particularly the case in countries where there is a lack of accountability in other branches of government. Developing codes of judicial conduct can also provide an important means of fostering judicial accountability, since they serve as both a guide to and a measure of judicial conduct. Strong and independent judges associations, meanwhile, can provide a safe point of reference for judges, allowing them to interact with the state in an accountable, yet robustly independent manner. Ultimately, though, the judiciary must be responsible to the citizens of a country, and civil society actors, including the media and NGOs, must play an enhanced role in demanding judicial accountability. 3. Detecting corruption in judicial systems Judges are expected to take decisions about breaches of law by individuals, governments and companies, but what happens if it is the judge who breaks the law? While judicial independence requires that judges have some limited measure of immunity and that they should be protected from trivial or vexatious complaints, mechanisms must be in place to ensure that corruption by judges or court personnel is detected, investigated and properly sanctioned. Incorporating whistleblower protection or anti-corruption telephone hotlines as part of judicial systems can help improve detection of corruption in the judiciary. It is often courageous members of the public or individuals of integrity within the judicial system itself who speak out against specific instances of corruption. Such action can be encouraged by developing a confidential and rigorous formal complaints procedure so that lawyers, court users, prosecutors, police, media and civil society organisations can report suspected or actual corruption in a judicial system."(pg 2)