1 Introducing the problem
Corruption within the judiciary: causes and remedies
Mary Noel Pepys1
Corruption in a justice system distorts the proper role of the judge, which is to protect the civil liberties and rights of the citizen, and to ensure a fair trial by a competent and impartial court. It enables public officials and specialinterest groups engaged in corrupt practice to function with the confidence that their illicit acts will go unpunished, if exposed. In broad terms, corruption is the misuse of entrusted power for private gain. In the context of judicial
corruption, it relates to acts or omissions that constitute the use of public authority for the private benefit of court personnel, and results in the improper andunfair delivery of judicial decisions. Such acts and omissions include bribery, extortion, intimidation, influence peddling and the abuse of court procedures for personal gain.
In corrupt judiciaries, citizens are not afforded their democratic right of equal access to the courts, nor are they treated equally by the courts. The merits of the case and applicable law are not paramount in corruptjudiciaries, but rather the status of the parties and the benefit judges and court personnel derive from their decisions. A citizen’s economic level, political status and social background play a decisive role in the judicial decision-making process. In corrupt judiciaries, rich and well-connected citizens triumph over ordinary citizens, and governmental entities and business enterprises prevailover citizens.
While it would be foolhardy to assert that corruption is non-existent in certain judicial systems, it is fair to say that in some countries corruption is minimal, sporadic and the result of individual, unethical behaviour. In such countries, the system in place supports the professionalism of the judiciary and protects the judge from untoward influence. Procedures make the justicesystem transparent and hold police, prosecutors and judges accountable.
In many other countries, judicial corruption is a systemic problem and addressing ethics alone is not sufficient to tackle the problem. The judicial system may be structured to foster corruption. The external pressures on a judge to act unethically are greater, and the risks of being caught and punished are lower.
1Introducing the problem
1 Mary Noel Pepys is a US-based senior attorney, with a specialisation in the rule of law, specifically internationallegal and judicial reform.
The different causes of corruption must be carefully diagnosed and identified, otherwise the remedies employed to eliminate corruption will be misdirected and will fail. What follows are seven factors that contribute to judicialcorruption and that can be remedied regardless of the type of legal system that exists.
Undue influence by the executive and legislative branches
Despite constitutional guarantees of equality between the three government branches (the legislature, which makes the laws; the executive agencies, which administer the laws and manage the business of government; and the judiciary, which resolves disputes andapplies the law), the executive and legislature have significant control over the judiciary in many countries. Where the rule of law has been historically weak, the judiciary is frequently viewed as an acquiescent branch of government. Judges in weak judiciaries are deferential to politically connected individuals in the executive and legislative branches.
Often the president of the country or apolitically motivated body (such as the Ministry of Justice or Parliament) has the power to appoint and promote judges without the restraints of transparent and objective selection procedures, or eligibility requirements may be vague, allowing for arbitrary compliance. Unless compelled by law, officials in the executive and legislative branches are averse to relinquishing their influence over the...