Judicial Integrity Initiative Launch: Judicial Systems and Corruption 9 December 2015: London, UK

Transcription

1 Judicial Integrity Initiative Launch: Judicial Systems and Corruption 9 December 2015: London, UK President s welcome and introduction to project It is a pleasure to welcome you to this event at which we will present some preliminary findings arising from the IBA s Judicial Integrity Initiative. In January 2015, the IBA launched the Judicial Integrity Initiative, which is one of my most important initiatives as IBA President. The overall goal of the Initiative, and its relevance to society as a whole, is to improve the level of integrity in the judiciary. The Initiative supplements the anti-corruption work the IBA has been doing through its Anti-Corruption Strategy for the Legal Profession, in conjunction with the OECD and UNODC, around the world since An essential component of the Initiative is the survey we recently conducted. The survey consisted of a very detailed questionnaire circulated to lawyers, judges, prosecutors, court staff and civil society around the world, which sought to identify how corruption may occur within judicial systems. We thought it appropriate to launch the preliminary findings of the survey today, 9 December 2015, which, as you are aware, is UN International Anti-Corruption Day. These preliminary findings are also informed by our consultations in the Philippines and Mexico, where relevant, and the expertise of the team working on the Initiative. A judiciary free from corruption is a fundamental requirement for the upholding of the rule of law and the ability to guarantee basic human rights in society. Any well functioning government, with the citizens best interests in mind, requires not only adherence to the rule of law, but also an independent judiciary to enforce that law impartially and equitably. When the judiciary is corrupt, it facilitates corruption in other sectors of government and it sends a message to the public the message that corruption is acceptable or, at least, is unlikely to be punished. Moreover, as lawyers, we have a special responsibility to work to eliminate judicial corruption, for when it occurs, lawyers are involved. Unfortunately, various indicators suggest that corruption in judicial systems continues to be a global problem. 1

2 Here are some facts and figures from the UN: Among the institutions most affected by corruption are the judiciary and police Corruption, bribery, theft and tax evasion cost some US $1.26 trillion for developing countries per year; this amount of money could be used to lift those who are living on less than $1.25 a day above $1.25 for at least six years The rule of law and development have a significant interrelation and are mutually reinforcing, making it essential for sustainable development at the national and international level Our goals are consistent with the UN s Sustainable Development Goal 16: 16.3 Promote the rule of law at the national and international levels and ensure equal access to justice for all 16.4 By 2030, significantly reduce illicit financial and arms flows, strengthen the recovery and return of stolen assets and combat all forms of organized crime 16.5 Substantially reduce corruption and bribery in all their forms 16.6 Develop effective, accountable and transparent institutions at all levels 16.a Strengthen relevant national institutions, including through international cooperation, for building capacity at all levels, in particular in developing countries, to prevent violence and combat terrorism and crime President summarises project and presents preliminary findings As was said in the film, we officially launched the JII in early 2015 by holding two meetings of experts in London and Singapore. Those experts included representatives from international organisations, academia, judges, lawyers and private sector. In fact, we had judges from 8 countries every continent including 3 Chief Justices. During the meetings, these experts examined the scope of the problem and current efforts including efforts of members of the judiciary who fight corruption and who encourage independence and impartiality in judicial decision making to combat judicial corruption. They proposed a series of suggestions on how the IBA could best contribute to those efforts. With the information gathered at these meetings, the Legal Policy and Research Unit under my leadership designed the JII, structured in two parts. The first part consists of research activities conducted by the IBA and the Basel Institute on Governance, which includes the world-wide survey, a detailed literature review, country case studies from Mexico and the Philippines and interviews 2

3 with individuals from 6 other countries. The outcome of the first part will culminate in a report that will identify the manner in which judicial corruption arises. The research methodology developed for this first part of the Initiative is unique. Our literature review reveals there are significant gaps in our knowledge regarding the nature, scope and drivers of corrupt practices in the judiciary. In order even to begin to address those gaps, a necessary first step for us was to further our understanding of the specific manners in which corruption arises in the judicial systems around the world. This needs to be done before we are in position to develop appropriate measures the second part of the Initiative to address those practices that undermine the effectiveness and legitimacy of judicial processes. The purpose of today s event is to share with you the preliminary findings we have identified to date from the responses to the survey, among other sources. As I said at the beginning, the survey comprised a very detailed questionnaire circulated to lawyers, judges, prosecutors, court staff and civil society around the world, which sought to identify how corruption may occur within judicial systems. It was circulated to all our members and we requested that our bar association and law society members circulate the survey, in turn, to all their members. We were also very ably assisted by the International Association of Judges, Transparency International and the International Association for Court Administration, all of which agreed to circulate the survey to their members. We received in response to the survey more than 1600 completed surveys from a total of 119 countries. Responses ranged from 1 from some countries to more than 100 from others. Responses were received predominantly by lawyers (67%) and judges (almost 20%) but also from court staff, prosecutors and civil society organisations. 55% of responses came from civil law jurisdictions, 31% from common law jurisdictions, 2% came from sharia jurisdictions and 12% came from hybrid jurisdictions. More than 60% of respondents were men. The process of analysing the responses to the survey is on-going, which means our findings at this time are necessarily very high level. Further, the responses from the survey need to be informed by our detailed literature review and our more detailed analysis of the outcomes of the country consultations in Mexico and Philippines. Finally, we need to ensure that the outcomes of our research are subject to appropriate controls by reference to work conducted by organisations such as the World Justice Project and Transparency International s Corruption Perceptions Index and its Global Barometer Report. We are in a position, however, to identify some key patterns that appear reasonably consistently in the characterisations of corruption in the judiciary identified through the survey results. The preliminary findings include the most prevalent modes of corruption reported by survey respondents: namely, political interference and bribery. While these findings are not new, our findings indicate that political interference in the judiciary can be qualitatively very different across countries and contexts. The following kinds of political interference that appear to be particularly relevant to the judiciary include: 3

4 a) political interference in the appointment processes this can either be blatant or openly partisan or more subtle with judges being appointed through a system that may be subject to political influence. b) political interference through informal networks these can be relatively benign, albeit still potentially corrosive, such as university ties, clans, kinship, ethnicity or religion or they can be deliberately corrupting and violent such as organised criminal networks similar to those experienced in Italy and Columbia in the 1990s / early 2000s and some parts of Mexico today. Further, political interference seemed mostly aimed at judges, prosecutors and, in some cases, investigators rather than witnesses, commercial or civil status litigants. Bribery in the judiciary also can be qualitatively very different across countries and contexts. It can range from endemic bribery in countries where high levels of corruption is rampant to countries with limited bribery, where recourse to bribing may be common but not widespread. In some countries, there exists intimidation and targeted bribery accompanied with threats of violence for non-compliance. Again, bribery seems most closely aimed at judges and prosecutors but also court personnel and investigators. It seems to occur less frequently with commercial and civil status litigants or witnesses. The intended outcomes of bribing include attaining a preferred outcome in criminal cases, influencing the application or enforcement of sanctions, influencing the kind or severity of sanctions and delaying or accelerating judicial procedures. Sadly, in all cases, it seems that the main incentive for those in judicial systems to acquiesce to engaging in corrupt conduct is the benefits it can bring. That is, material benefits for oneself, for one or more family members or for the professional s community. It is important to emphasise that political interference and bribery do not occur uniformly across systems even within countries. Therefore, it would appear somewhat simplistic to aim at generalising results across countries or even within where there may be national and regional judicial systems. Further, different types of courts may "attract" different forms of corruption (courts dealing with electoral issues may attract more political interference, while civil courts may attract bribery through influential business people, and criminal courts would possibly more exposed to criminal networks). The structure of our survey meant that respondents could provide one or more responses to some questions. So, for example, one question asked respondents whether they think there are widely held expectations that one or more of various kinds of misconduct may occur within the judiciary in their country. The 11 forms of potential misconduct listed ranged from the outcome of criminal proceedings can be bought by bribing a judge to judges misuse their position to secure an entry to politics. Responses to that question suggest that the most widely held expectations in some countries are: the outcomes of most judicial proceedings can be bought by bribing a judge 4

5 important political figures and wealthy individuals are untouchable lawyers facilitate the cover up of their clients criminal activities prosecutors are not truly independent / they respond to political requests court clerks are used to facilitate corrupt conduct Of particular interest is the expectation that lawyers facilitate the cover up of their clients criminal activities. Responses to the survey suggest that more than 50% of lawyers are intermediaries in corrupt conduct. Essentially, lawyers in this context can be either intermediaries between their clients and the judiciary directly or indirectly by sourcing an intermediary. Certainly, the consultation in the Philippines identified that where judicial corruption involved judges, an intermediary was almost always involved. If the intermediary was not a lawyer, it was a padrino or patron sourced by a lawyer who will seek to corrupt the judge s decision. More broadly, while more analysis is required, what seems to be apparent in these findings is that those professionals within the judicial system whose role involves interaction with third parties outside the judicial system are most at risk of being corrupted. For example, members of court staff interact with litigants, prosecutors interact with defendants and lawyers represent their clients in judicial proceedings. In each case, each has the opportunity to abuse their position or to allow themselves to be corrupted by the preferences of the party with whom they are interacting. When considering where in the judicial process corruption is most likely to occur, of the 13 possible responses the weakest links include: court procedures enforcement of sanctions charging criminal offenses prosecutors discretion the allocation of a case to a judge The results of the survey and the country consultations indicate that bribes are often paid to expedite court proceedings. Participants in both the Mexican and Philippines consultation referred to extensive delays in court proceedings. Such delays, in and of themselves, provide incentives to litigants to offer bribes, or members of the judicial system to demand bribes, to speed up the proceedings. One example that came up in the Philippines consultation is that couples seeking to end their marriage often pay to secure a quick annulment divorce is illegal in the Philippines and proceedings to annul a marriage can be lengthy again either through a lawyer or through a padrino. In terms of case allocation, the Philippines offers an interesting approach as to how cases are allocated to judges. Previously, it was up to the Clerk of the Court to determine which case was allocated to which judge. This gave rise to concerns of corruption so a system of raffling the cases was introduced. Each week a raffle is held through which cases are allocated to each judge. The raffle is conducted in the presence of the Clerk of the Court and judges, with minutes of the results recorded. The results are audited from time to time to ensure cases are allocated impartially. According to the judges, however, manipulation of the results still occurs with the connivance of the 5

6 judge in attendance and the Clerk. A raffle may be faked, a case is given to a sympathetic judge and the minutes are altered. Of the range of cases listed in the survey, the kinds of cases in which corruption seems to be most prevalent are: criminal administrative The information derived from meeting with civil society during the consultation in Mexico indicates that organised crime has a significant influence. However, such conduct occurs not just in criminal cases but also in commercial cases, particularly money laundering, and can involve lawyers and politicians. Although corruption is not identified as being prevalent in family law, it does occur. During the Philippines consultation it appeared in the context of adoption cases, particularly overseas adoptions. The Family Court has social workers as part of its court staff. We were informed that to expedite an adoption process and avoid some of the more rigorous procedures connected to adoption cases, parties with the connivance of other court personnel secure the services of social workers outside the judicial system. These social workers then complete the required report to meet the parties requirements and then forge the signatures of court social workers so it appears the correct procedures were followed. Other issues arising from the country consultations relevant to the Initiative are the relationship between judges and lawyers and the importance of legal education. For example, in the Philippines lawyers depend on judges to endorse their admission to practice. This makes lawyers reluctant to raise concerns about judges who they believe to be corrupt. In addition, if a lawyer makes a complaint against a judge, it is, often almost immediately followed by a counterclaim for disbarment by the judge against the lawyer. The Mexican consultation highlighted the importance of legal education. During the consultation we were informed that many of the law schools have poor education standards. And because lawyers are not obliged to certify with a bar association, it is not possible to oversee ethical control of the profession effectively. As the data analysis progresses, we will be able to report further on the details about patterns in which the actions of different actors in the judiciary involve corruption risks. We hope to present the final report by the end of March next year. As stated earlier, the IBA will then undertake a number of activities to promote and increase the dialogue between lawyers, judges and other actors drawing on the outcomes set out in that report. Finally, although it is not yet certain what will be the best way to deal with judicial corruption, one thing that is clear is that its elimination will only come through concerted and constant efforts by all actors in the judicial system. 6