Abstract
The previous chapters have discussed organizational influences on judicial decision-making against the notion of rationality. Do organizational arrangements allow the AC to align its choices with its goals? How do bounded rationality aspects give rise to discretion? In this chapter, these organizational influences are assessed by reference to independence and accountability, two universal ideals to be pursued in judicial systems. Do these organizational impacts constitute undue influences on the independence of judiciary? Or do they promote judicial accountability to particular values?
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- 1.
Former justice Sandra Day O’ Conner questions the accountability desired by the majority and puts accountability subject to the notion of independence (Connor 2008).
- 2.
Principle 17 states that “[a] charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.” Principle 18 sets the grounds for removal and says that “[j]udges shall be subject to suspension or removal only for reasons of incapacity or behavior that renders them unfit to discharge their duties” (UN 1985).
- 3.
Principle VI(1) spells out specific measures when judges fail to carry out responsibilities and disciplinary offenses. It states that “[w]here judges fail to carry out their duties in an efficient and proper manner or in the event of disciplinary offences, all necessary measures which do not prejudice judicial independence should be taken. Depending on the constitutional principles and the legal provisions and traditions of each state, such measures may include, for instance: a. withdrawal of cases from the judge; b. moving the judge to other judicial tasks within the court; c. economic sanctions such as a reduction in salary for a temporary period; d. suspension.”
- 4.
A little different from Cappelletti’s classification, Charles Gardner Geyh provides a judicial accountability taxonomy which encompasses three categories: (1) institutional accountability (collective accountability of the judiciary as a branch of the government), (2) behavioral accountability (behavior of judges on their private capabilities), and (3) decisional accountability (discharge of professional functions) (Geyh 2006, p. 917).
- 5.
Randall Peerenboom also argues for a discussion of judicial independence in authoritarian states (Peerenboom 2010). The author would like to elaborate more on this topic.
- 6.
Professor He’s opinion is a little different. He insists on the concept of judicial independence, but thinks that judicial independence can be discussed in two senses: judicial power independence and adjudicative independence. He uses the term of “judicial independence” in its second sense (He 1988, p. 314).
- 7.
Wang Pan and Cheng Zhengju think that Chinese adjudicative independence is a type of “technical judicial rule” which guarantees the realization of justice in judicial decision-making (Wang and Cheng 2002, pp. 54 and 58).
- 8.
Zhang Min and Jiang Huiling explain that emphasis on federative power has historical reasons. At that time, a bourgeois revolution brewed across the continental Europe, and foreign affairs became an important issue for individual states (Zhang and Jiang 1998, p. 16).
- 9.
The reason for this division is the historical concern over the interference of ordinary courts with the executive branch of the government. When jurisdiction conflicts arise, jurisdiction issues are decided by the Tribunal of Conflicts.
- 10.
Peter H. Russell thinks highly of impartiality. He proclaims that the fundamental purpose of the principle of judicial independence is that it gives parties reason to believe that the case will be fairly handled (Russell 2001, p. 10).
- 11.
He explains in this article that he defines judicial independence as independent from the executive rather than the legislature because the judiciary can never be completely independent from the legislature in consideration of the law-making functions of the legislature and provision of funding and personnel for the courts (Tiede 2006, pp. 133–134).
- 12.
Fu and Randall draw a distinction between (pure) political cases and politically sensitive cases. The former directly challenge the authority of the ruling regime. The latter affect sociopolitical stability and economic growth. The latter is less directly political than the former (Fu and Peerenboom 2010, p. 96).
- 13.
IPC of Puyang City Henan Province (2010). Meng Xianyan v. People’s Government of Chengguan Town Fan County.
- 14.
Id. The plaintiff disagreed with this decision and appealed to the IPC of Puyang City.
- 15.
Randall Peerenboom thinks that self-restraint is one strategy used by judges in certain types of cases such as corporate cases and even more clearly in high-profile cases that involve political dissidents (Peerenboom 2010, p. 15).
- 16.
The duty of diligence has a close relationship with the duty of competence. An act which violates one often companies a violation of the other (American Bar Association 2003, p. 18).
- 17.
Cannon 3A (1) stipulates that “[a] judge should be faithful to the law and maintain professional competence in it. A judge should be unswayed by partisan interest, public clamor, or fear of criticism.” Cannon 3B(1) specifies that “[a] judge should diligently discharge the administrative responsibilities of the office without bias or prejudice, maintain professional competence in judicial administration, and facilitate the performance of the administrative responsibilities of other judges and court officials.”
- 18.
This cites some of the important legal skills, such as the analysis of precedent, the evaluation of evidence, and legal drafting. It also highlights the most fundamental legal skills, such as determining the type of legal problems that a situation may involve and the skills that necessarily transcend any particular specialized knowledge (American Bar Association 2003, p. 17).
- 19.
The Court of Appeals of Maryland (2003).
- 20.
No. 78,616 in the Matter of Carl S. Black (1997), http://www.kscourts.org/cases-and-opinions/opinions/supct/1997/19970711/78616.htm. Accessed 22 March 2010.
- 21.
Owen makes a similar argument in the context of bureaucratization of the judiciary. He thinks that “[j]udicial independence is not threatened by bureaucratization, and, indeed, today the independence of the judiciary from the political branches might depend on its capacity to develop the organizational resources usually associated with a bureaucracy” (Fiss 1983, p. 1443).
- 22.
International Bar Association Code of Minimum Standards of Judicial Independence provides personal and substantive independence for individual judges. Personal independence means “the terms and conditions of judicial service are adequately secured, so as to ensure that individual judges are not subject to executive control.” Substantive independence means “in the discharge of his judicial function, a judge is subject to nothing but the law and the commands of his conscience” (Shetreet and Deschênes 1985, p. 388).
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Li, L. (2014). Discretion, Judicial Independence, and Accountability. In: Judicial Discretion within Adjudicative Committee Proceedings in China. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-54041-7_7
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