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This paper delves into the complex dimensions of judicial independence, specifically examining the concepts of autonomy/control and independence/partisanship. It highlights the degree of discretion allowed to judges and the potential for interference from interested parties, often the executive. By analyzing institutional design and political factors, it elucidates how appointments and control mechanisms influence judicial decision-making. Through real-world examples from Argentina and Kyrgyzstan, it underscores the critical interplay between politics, institutional frameworks, and the maintenance of judicial independence.
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Defining independence: Two dimensions of independence, and their sources
Control vs. Independence • Autonomy/Control: the degree of uncertainty we will tolerate in judicial decisions; the amount of discretion left to individual judges • Independence/Partisanship: the extent to which the decision-maker is identified with one of the parties to the dispute.
Control over preferences vs. control over decision-making • lack of preference independence: the over-identification of judges with a party that has an interest in the dispute (often, the executive) • E.g., the Menem court in Argentina, the Constitutional Court in Kyrgyzstan under Akayev • lack of decisional independence: the capacity of an interested party (often, the executive) to interfere with judicial decision-making • E.g., “telephone justice” in Bahia and across the region
The source of control: institutional design • Mechanisms of appointment produce different levels of control over the preferences of appointees • Compare simple majority of Senate, to simple majority with filibuster rule, to 2/3 majority • Mechanisms that control decision-making (discipline, promotion, compensation, appellate oversight) produce different levels of control over decision-making • Compare impeachment, to discipline and promotion by an oversight body • Variation in degrees depends on capacity: access to information, available sanctions, ease of use
The source of partisanship: politics • Factional dominance of mechanisms of appointment and control • Open and public mechanisms force the use of more consensual standards, so reduce any one faction’s capacity to bias outcomes • Internal mechanisms typically have more information than external mechanisms and are more effective, but harder for outside factions to control • When these mechanisms are controlled by an identifiable faction, the courts lose (at least the perception) of independence. • Political Partisanship • Other kinds of factions: e.g. economic elites (São Paulo, Brz); conservative social elites (Córdoba, Arg)
In short: Politics interacts with institutional design to produce varying levels of independence and control.
