REDUCING CORRUPTION IN THE JUDICIARY - OFFICE OF DEMOCRACY AND GOVERNANCE USAID PROGRAM BRIEF
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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 iACRONYMS
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 iiBearing 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 1implemented 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 2therefore, 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 3standards, 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 4judges 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 5experience 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 6are 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 8resources 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 9ideally 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 10risks 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 11C. 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 12As 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 13First, 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 14are 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
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