The judiciary and transparency

Rishi Maharaj, executive director of EquiGov Institute

An independent and impartial judiciary is a cornerstone of the rule of law.

It serves to protect citizens' rights and liberties, provides a check on other branches of government, and helps secure an environment conducive to economic growth and social progress. It exists to serve and protect not the governors but the governed.

Strong courts, reliable contracts, and the rule of law are critical to the country’s economic competitiveness, and they are particularly important to small businesses because of the certainty they provide.

It is critical to note that judicial independence is not a right of the institution designed to protect it. It is a right of citizens, who have a vested interest in having a neutral, independent court system to protect their fundamental rights from interference by the state and others.

There is an inevitable tension inherent in concurrently calling for increased judicial independence, heightened public scrutiny and improved transparency within our judicial process. To some it may even seem that these ideas are irreconcilably promoting conflicting values. Indeed, one of the pillars that the judiciary holds dear to its core is the notion of independence.

However, what may seem like conflicting ideologies can function in pursuit of a common objective.

Independence should not and does not mean that the judiciary is beyond control and can do as it pleases. Uncontrolled power is unacceptable in a modern democracy. All power, including that of the judiciary, should be responsible and responsive to the community. Judicial independence determines the form, not the presence of accountability.

As further noted in the working paper Access to Information and Transparency in the Judiciary published by the World Bank, "It is important to clarify that judicial independence should not be understood as a value of its own, preventing an adequate oversight of the judges’ performance. Independence should not be equated to isolation or to the non-existence of the duty of accounting for the work a judge carries out. On the contrary, the notion of independence should be conceived as the precondition for impartiality in judicial behaviour and as a guarantee for better service to the public. Judges should not be exempt from the controls that are applied to other state institutions. Such independence entails a responsibility that demands adopting mechanisms for transparency and accountability to guarantee that judges are held accountable for their decisions and/ or for the due use of the resources assigned to them.”

Transparency, accountability, and efficiency are the pillars on which a judiciary rests in a democracy. If the legitimacy of the judiciary is be maintained, it is critical that it has the confidence of the public. This public confidence can only be maintained with the provision of appropriate information that the judiciary is not just independent, but effective, efficient, and well administered. Public confidence does not manifest itself in the public agreeing with every individual judicial decision, but in the underlying belief in the legitimacy and integrity of the system.

The distinguished former president of the Supreme Court of Israel, Aharon Barak, in his book The Judge in a Democracy, observed: “But we are judges. We demand that others act according to the law. This is also the demand that we make of ourselves...We believe in an open government and openness in government does not mean openness merely in the functioning of the executive arms of the state. The same openness must characterise the functioning of the judicial apparatus including judicial appointments and transfers.”

Public confidence ought to be one of the major sources of authority for the judiciary. Without that confidence, its ability to perform its role, resolve disputes and keep the other branches of government in check is seriously compromised.

It is therefore imperative that in this present scenario the judiciary do all that is required to re-establish that confidence. The expectations of the public are now high, and the growing call for transparency and accountability should not be resisted but seen as part of a natural development of the relationship between the judiciary and the public.

Transparency and accountability are matters of degree; judicial independence is not. The degree of transparency and accountability required depends on the culture and history of a country; judicial independence does not.

The Equigov Institute provides consultancy, training and research in data privacy/protection, governance, information access, transparency, and monitoring and evaluation.