WJP Asia Pacific Forum Participants Highlight Strategies for Strengthening Judicial Independence

 

Judicial independence is one of three pressing rule of law issues the World Justice Project (WJP) is working to advance in the Asia Pacific region. This theme together with access to justice for minorities and building healthy information ecosystems were the focus of the December 8-9 Asia Pacific Justice Forum convened by WJP and co-hosted by Kemitraan and the Australia Indonesia Partnership for Justice 2. 

By Sally Aldrich, Program Associate, Engagement, World Justice Project 

In recent years, many countries have struggled to uphold a fundamental aspect of the rule of law: judicial independence.

Judicial independence is not easily measured, but three indicators in the WJP Rule of Law Index provide insight into the impartiality of the judiciary, and the data suggest persistent and growing challenges in the Asia Pacific region. 

Identifying barriers to judicial independence in Asia Pacific

In the last 5 years, 81% of countries surveyed in the region decreased in their score on the indicator measuring the judiciary’s ability to effectively check government powers. Second, 62% decreased in their score measuring whether the civil justice system is free from improper influence. Finally, 52% decreased in their score measuring whether their criminal justice system is impartial. 

Why are many of the countries in the region deteriorating on these indicators and what are the key challenges their judicial systems face? In early December, civil society actors, justice leaders, academics, and professionals gathered in-person in Jakarta, Indonesia, and online for the Asia Pacific Justice Forum to discuss these questions and good practices to measure and improve the independence of their judicial systems moving forward.

In the Opening Remarks and Keynote Statements of the Forum, speakers emphasized the importance of maintaining the integrity of the courts. The Honorable M. Syarifuddin, Chief Justice of the Supreme Court of Indonesia, spoke of the need for individual and organizational level efforts to improve judicial independence and minimize corruption in the courts. He added that government institutions and civil society organizations must work together to implement changes in the judiciary. 

Professor Margaret Satterthwaite, UN Special Rapporteur on the Independence of Judges and Lawyers, highlighted the role of the COVID-19 pandemic in heightening authoritarianism and eroding democracy across the globe, leading to additional threats to the independence of judges and lawyers.

Forum attendees from across the region explored these themes further in the “Interactive Session on Independent Judiciary and the Rule of Law.” In this session speakers identified bribery, threats and security risks, and political influence as some of the main challenges judges and lawyers face in upholding courts’ independence. Political influence can especially affect a case when the defendant is a state officer or body, noted Shiranee Tilakawardane, former Supreme Court Justice of Sri Lanka.

Participants discussed how political influence in the courts can lead to injustices with significant consequences. For example, Pornpen Khongkachonkiet, Executive Director of the Cross Cultural Foundation, explained that in Thailand, the perpetrators of a massacre of 99 protesters in 2010 were never brought to justice. Similarly, she told the audience that in some 200 cases of extrajudicial killing in Thailand since 2004, none of the responsible officers has been brought to justice. She reported that the political murders and extrajudicial killings have not been properly investigated because many officials are easy to bribe and outside influences are common. 

Miriam Chinnappa, interim country director for Myanmar Bridges to Justice, noted that predetermined outcomes of juridical cases are becoming the norm in Myanmar, and lawyers regularly face security risks while carrying out their most basic duty of defending their clients in court.

While these setbacks are troubling, Forum attendees learned that civil society and government organizations alike have been responding with innovative practices and tools. 

Tracking judicial performance 

The Federal Court of Australia created a framework to measure indicators of judicial performance across the Pacific Islands, a region historically lacking in data needed to understand transparency and accountability of their courts’ systems. Helen Burrows, director of the court’s international programs, highlighted that this data collection has generated annual outcome reports measuring court performance on topics such as affordability, accessibility, transparency, feedback complaint mechanisms, and more. The collection of this baseline data has also enabled the Pacific Island courts to set performance standards, increasing their ability to track their progress and promote public confidence in their proper functioning.

While the Federal Court of Australia created a mechanism to collect data and measure judicial processes, Myanmar Bridges to Justice utilized both formal and informal pathways to support judicial independence in a tumultuous legal landscape. 

“We are operating in a context where we often see the judiciary is compromised, laws are weaponized, and democratic institutions are gradually dismantled,” explained Miriam Chinnappa. 

To uphold the rule of law in this context, lawyers systematically and meticulously worked with local and international legal institutions to fight for their constituents and advance systemic change. Chinnappa gave the example of a group of lawyers that drew the attention of the courts and other actors to the gaps in judicial interpretations of children’s rights law in Myanmar. Their efforts resulted in significant changes to the way police, lawyers, and judges interact with children who come in contact with the criminal justice system in Myanmar.

The way forward 

Speakers widely agreed that maintaining judicial independence depends on the courage of the legal community to uphold the principles of judicial integrity and emphasized the importance of continuous measuring and reinforcing the many factors that ensure fair and independent judicial processes.

“Judicial independence is one of those parts of the rule of law that we never fully achieve and on which we must always continue to work,” said Elizabeth Andersen, executive director of the World Justice Project. “It is not a stand-alone issue. It is deeply integrated with so many other parts of the rule of law.” 

To build on the discussions at the Forum, the World Justice Project is now exploring the possibility of creating a measurement framework for judicial independence. WJP hopes to remedy some of the threats to judicial independence by providing necessary data to those maintaining the integrity and impartiality of the courts.

Learn more about the Asia Pacific Justice Forum and watch the full session on judicial independence below: