Debating Independence Versus Accountability In Judicial Systems

We generally think of a legal system as something that develops over time, even centuries; a mixture of laws, rulings, interpretations, practices and procedures growing “organically” with many different influences. Often, though, events bring about change at a much faster space, compressing the time frame of “what was” and “what is to be.” It is in these situations that an expert, such as Associate Professor of Law David Pimentel, is called upon for guidance.

Regular readers of Coastal Law Magazine will already be familiar with Pimentel; two stories in our Winter 2011 issue detailed his Fulbright Scholarship work in Bosnia and his prolific output of papers, presentations and speaking engagements. Through his professional experience and academic research, Pimentel has developed an expertise in the reform and restructure of judicial systems, especially in developing and post-conflict societies. Pimentel, with both his J.D. and a master’s degree in economics from Berkeley, has more than 10 years’ experience working inside U.S. federal courts, trial courts, appellate courts, the Administrative Office of the U.S. Courts and as a Supreme Court Fellow. He spent four years in The Hague as the Chief of Court Management at the United Nations’ International Criminal Tribunal for the former Yugoslavia. He also headed the rule of law efforts in Southern Sudan for the United Nations mission, and has led court reform projects in Bosnia and Romania. A Coastal Law faculty member since 2007, Pimentel teaches Comparative Law and a seminar on International Rule of Law, among other courses.

Most recently, first at the request of The Brigham Young University (BYU) Institute on Law and Religion, and later on behalf of the American Bar Association (ABA) Rule of Law Initiative, Pimentel has been consulting in Nepal on the judiciary provisions for that country’s new constitution. A nation of over 29 million people wedged between China and India, the Nepal of 2011 certainly qualifies as a post-conflict society. The country is attempting to set up a secular democracy after more than 200 years as a Hindu monarchy, a failed first constitution from 1990, and a decade-long civil insurgency.

Pimentel said, “The constitutional negotiations in Nepal are bringing to light deep ideological divides among the different parties, and the structure of a new judicial branch has not been exempted from the debate.”

Breaking from other outside experts who preach a standard “international best practice” for a judicial structure, Pimentel is reframing the debate in terms of analyzing the proper balance of independence and accountability in a judicial system in light of a country’s specific history and culture. For Pimentel, that balance of independence and accountability is correlated, respectively, to what he calls a judiciary’s courage and integrity.

The reframed argument begins with the fact that every country, whether established, developing or in a post-conflict stage, has an inherent issue when addressing the power of its judicial branch—the tension created when trying to strike a balance between independence and accountability.

“The reason for judicial independence, for insulating judges against outside influence through institutional safeguards (such as life tenure), is to ensure that they can make the courageous decisions that protect the minority from the tyranny of the majority,” said Pimentel.

Free from the fear of reprisal and beholden to no one or no institution except for the law itself, an independent judiciary can make decisions that, while unpopular, are correct under the law. An example is the pro-civil rights rulings in the South in the 1960s. For Pimentel, if judges won’t stand up for the unpopular minority, there can be no justice in the society. Yet, while institutional safeguards promote judicial courage, they are merely vehicles. The true goal is to have judges with the internal courage to do the right thing.

However, we desire that the judiciary, as a branch of government, be accountable to the citizens—that there are repercussions for unwanted actions. A simple example would be the ability to remove a judge for accepting bribes.

“Accountability is about keeping judges honest, that they don’t lapse into corruption or pursue their own agendas,” said Pimentel. “This is demanding integrity from judges.”

Matching independence with courage and accountability with integrity, Pimentel has developed a unique graphic representation to illustrate the relationships. Along the x axis, low to high, is courage, while along the y axis, low to high, is integrity. Pimentel then delineates four quadrants within this graph and populates it with the type of judges / judiciary that are created by the characteristics therein. Any judge in any system falls into one of the four quadrants.

Those in the lower left quadrant—low courage and low integrity—Pimentel calls the “corruptible.” They do not stand on principle. These judges are easily influenced and swayed, whether by bribery, fear of reprisal or just prevailing public opinion.

Click for full image (Illustration by Heather Blanton)

The upper left quadrant—low courage but high integrity—Pimentel labels “good intentions.” These judges want to do the right thing under the law, but can be intimidated or lack the conviction to follow through.

The upper right quadrant—high integrity and high courage—is reserved for “heroes,” those judges that do what is right regardless of the ramifications to them. (See News & Events article on Charlie Swift in this issue). These are the judges we would all want to have.

Pimentel said, “Judicial heroes act with courage regardless of the institutional safeguards for independence, and do not need the institutional mechanisms that promote integrity, because they are already possess this trait.”

For Pimentel, the remaining lower right quadrant represents the worst possible combination—low integrity and high courage. These are the “monsters,” ready to carry out their own self-serving agenda regardless of potential consequences. Impeachment, dismissal, possible fines or imprisonment, they don’t care—they are in it for themselves.

In his research and his consulting work with countries that are struggling with constitutions and, within that, establishing or reformulating their judiciaries, Pimentel has noted the unintended, if not disastrous, consequences of not understanding these relationships in the context of a country’s culture and history. Nepal’s first foray into a constitutional monarchy in 1990, after centuries of autocratic Hindu rule, provides a clear example. Pimentel was not associated with Nepal at that time, but relates how Nepal never had a tradition of an independent judiciary. What judiciary that had existed had always been subject (accountable) to the power of the king. The 1990 constitution, while protecting the power of the king, also structured a judiciary that by all appearances was separate and independent. The problem created was that, without a history of judicial integrity, and rushing to promote independence over accountability, this new judiciary became terribly corrupt in both public perception and practice. Using the graph as the guide, increasing judicial independence should be a good thing—it should push the “good intentions” into the “heroes” quadrant. What happened in 1990s era Nepal, however, was that the new judicial independence, without the history of judicial integrity or enough institutional mechanisms for promoting integrity, affected only the lower half of the graph, and allowed “corruptible” to become “monsters.”

Nepal is still paying the price for this today. Fueled by dissatisfaction with the 1990 constitution (and the judiciary it created), a bloody, Maoist-led civil insurgency finally ended in 2006 when they agreed to stop fighting and become part of a new political process. With its 200-year-old Hindu monarchy swept away, Nepal is still struggling to establish a secular, multi-party democratic republic. A special legislative body called the Constituent Assembly was elected in 2008 with a self-imposed deadline of May 2010 to draft a new constitution. As May 2010 came and went, this deadline was extended to May 2011, and, at the time of this writing, extended a further three months. Structuring the judiciary is of course a main part of the constitutional negotiations. While many outside voices are calling for an independent Nepali judiciary as part of “international best practices,” this independence idea, even just in terminology, is striking a sour note with the Maoists and other factions in the debate. The last thing they want is a re-creation of the “monsters” of the 1990s. This is contributing to the constitutional gridlock and missed deadlines.

Thus, in papers and presentations, Pimentel is challenging what he calls the “one-size-fits-all” concept of judicial independence, and believes many rule-of-law reformers are missing this bigger cultural picture. When a society has no tradition, no culture, no expectation of judicial integrity, the worst thing that can happen is judicial independence. Pimentel stresses that in these situations judicial accountability has to be addressed first. Institutional mechanisms for this would include review boards, oversight committees, easier methods of removal, strict penalties and other means to let judges know that they have to “keep their noses clean” and do what is correct. Again using the graph as a guide, increasing accountability should push “corruptible” into the “good intentions” quadrant. These judges realize which way the system is moving, and they will change to remain part of it. This is a good step in the right direction.

Therefore, in these cultural situations, the trajectory of change for Pimentel is clockwise, starting in the lower left quadrant. Through accountability first, integrity can be promoted and “corruptible” can be moved to “good intentions.” Only after that can independence be introduced and those with “good intentions” become “heroes.” Of course it’s not as black-and-white as all accountability and all independence; the point is to strike the correct balance in an ongoing process given the culture. Eventually, the ultimate ideal is to have “heroes” in a society where institutional safeguards for independence and institutional mechanisms for integrity are not as necessary, because the good traits of independence and integrity are ingrained in everyone. Exceptions may be plentiful, but most would agree that judicial independence and integrity are highly present and expected here in the U.S. For Nepal, Pimentel believes it could take two generations for that attitude to prevail.

But, what about the “monsters?” Safeguards for independence don’t matter to them; they already have the courage to do what they want. Accountability initiatives don’t faze them; their low integrity makes them completely self-centered.

“‘Monsters’ can’t be moved in the graph—so they have to be moved out,” said Pimentel.

Pimentel served as a consultant on projects to reform and restructure the court system in post-war Bosnia. He relates how they literally fired every judge in the entire country, and immediately started a recruitment campaign to find new judicial appointees. All fired judges were asked—in fact encouraged— to apply for positions in the newly reformed system. Given this ability to mass review, about 70 percent of the previous judges were reappointed. The others, those with the worst ethical records, were able to be weeded out.

For Nepal, Pimentel believes that its specific situation, at this time, calls for constitutional provisions that emphasize judicial accountability over judicial independence. With a culture of judicial corruption, Pimentel feels that too much judicial independence could do more harm than good. He is recommending that a “Constitutional Court,” separate from the other branches of government (including the Nepali Supreme Court), be given the power of judicial review. This Constitutional Court would, at minimum, be a watchdog to steer the “corruptible” up the ladder as the country develops its own internal expectation of integrity.