Judges and Democratization Judicial Independence in New Democracies Challenges of Globalisation Series

Judiciaries must be politically impartial and immune from political interference if democracy is to be consolidated in countries in transition from authoritarian rule. Without an independent judiciary there can be no rule of law, and without the rule of law there can be no democracy.

Judges and Democratization is based on the premise that democracy cannot be consolidated without the rule of law of which judicial independence is an indispensable part. It pays particular attention to the restraints placed upon judicial independence, and the reforms which are being applied, or remain to be adopted, in order to guard against the different kinds of interference which prevent judicial decisions being taken in a wholly impartial way. It examines the paradox of judicial activism arising from the independence endowed upon the judiciary by post-authoritarian constitutions. The book asks how, in the context of this endowed authority, such accountability can be made compatible with the preservation of judicial independence when the concept of an accountable, independent judiciary appears to be a contradiction in terms.

This text will be of key interest to teachers and students of politics, comparative government/politics, combined politics and law, democracy and governance, human rights and democratization, and democratic development.

1. The Rule of Law and Democracy

Introduction

The Rule of Law and Public Policy

The Principles of the Rule of Law

The Rule of Law and Democracy

Trends in the Rule of Law

The Rule of Law and Democratic Consolidation

Democratic Constitutions and the Rule of Law

The rule of Law and Social Inequality

2. The Rule of Law and Judicial Independence

Introduction

Impartiality

Insularity

Exclusive Competence

Compliance

Judicial Independence and Democracy

3. Undermining Judicial Independence

Introduction

Powers of Appointment to the Judiciary

Control of the Judge’s Career

Appointments to Judicial Councils

Resources

Intimidation

Limiting the Scope of Judicial Review

Exceptional Courts

Steering the Judiciary

Non-enforcement

4. Judicial Bias

Introduction

Biased Proceedings

Inefficiency

Biased Judges

Corruption

Causes of Judicial Corruption

5. Judicial Reform

Introduction

Political Competition

Civil Society

Legislative Scrutiny

Intimidation

The Scope of Judicial Review

Exceptional Courts

Enforcing Judgements

6. Reforming Judicial Behaviour

Introduction

Judicial Capacity

Efficient Judges

Unbiased Judges

Honest Judges

The Politics of Judicial Reform

7. Judicial Management

Introduction

Judicial Self-management

The Executive Model of Management

The Role of Legislatures

8. Judicial Activism

Introduction

Judicial Power

Abstract Constitutional Review

Constitutional Amendment

Testing the Legality of Policy Decisions

Testing the Constitutionality of the Political Process

Judicial Review of Administrative Action

Executive Suppression of Judicial Independence

Judicial Activism and Democracy

9. Judicial Accountability

Introduction

Demands for Judicial Accountability

The Concept of Accountability

Accountability for Policy Review

Accountability through Self-Management

Accountability for Corruption

Accountability for Bias

Accountability for Ineffectiveness

Accountability for Impeded Access to Justice

Elected Judges

Transparency

10. Conclusion: The Dilemma of Judicial Independence

Introduction

The Struggle for Judicial Independence

Judicial Reform

A Universal Rule of Law

Independence and Accountability

The Rule of Law’s Fragility

B. C. Smith is Emeritus Professor of Political Science and Social Policy, University of Dundee, UK.