perspectives
DEBATING INDEPENDENCE VERSUS ACCOUNTABILITY IN JUDICIAL SYSTEMS We generally think of a legal system as something that develops over time, even centuries; a mixture of laws, rulings, interpretations, practices and procedures growing “organically” with many different influences. Often, though, events bring about change at a much faster pace, compressing the time frame of “what was” and “what is to be.” It is in these situations that an expert, such as Associate Professor of Law David Pimentel, is called upon for guidance. Regular readers of Coastal Law Magazine will already be familiar with Pimentel; two stories in our Winter 2011 issue detailed his Fulbright Scholarship work in Bosnia and his prolific output of papers, presentations and speaking engagements. Through his professional experience and academic research, Pimentel has developed an expertise in the reform and restructure of judicial systems, especially in developing and post-conflict societies. Pimentel, with both his J.D. and a master’s degree in economics from Berkeley, has more than 10 years’ experience working inside U.S. federal courts, trial courts, appellate courts, the Administrative Office of the U.S. Courts and as a Supreme Court Fellow. He spent four years in The Hague as the Chief of Court Management at the United Nations’ International Criminal Tribunal for the former Yugoslavia. He also headed the rule of law efforts in Southern Sudan for the United Nations mission, and has led court reform projects in Bosnia and Romania. A Coastal Law faculty member since 2007, Pimentel teaches Comparative Law and a seminar on International Rule of Law, among other courses. Most recently, first at the request of The Brigham Young University (BYU) Institute on Law and Religion, and later on behalf of the American Bar Association (ABA) Rule of Law Initiative, Pimentel has been consulting in Nepal on the judiciary provisions for that country’s new constitution. A nation of over 29 million people wedged between China and India, the Nepal of 2011 certainly qualifies as a post-conflict society. The country is attempting to set up a secular democracy after more than 200 years as
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Coastal Law Magazine | Fall 2011
a Hindu monarchy, a failed first constitution from 1990, and a decade-long civil insurgency. Pimentel said, “The constitutional negotiations in Nepal are bringing to light deep ideological divides among the different parties, and the structure of a new judicial branch has not been exempted from the debate.” Breaking from other outside experts who preach a standard “international best practice” for a judicial structure, Pimentel is reframing the debate in terms of analyzing the proper balance of independence and accountability in a judicial system in light of a country’s specific history and culture. For Pimentel, that balance of independence and accountability is correlated, respectively, to what he calls a judiciary’s courage and integrity. The reframed argument begins with the fact that every country, whether established, developing or in a post-conflict stage, has an inherent issue when addressing the power of its judicial branch—the tension created when trying to strike a balance between independence and accountability. “The reason for judicial independence, for insulating judges against outside influence through institutional safeguards (such as life tenure), is to ensure that they can make the courageous decisions that protect the minority from the tyranny of the majority,” said Pimentel. Free from the fear of reprisal and beholden to no one or no institution except for the law itself, an independent judiciary can make decisions
that, while unpopular, are correct under the law. An example is the pro-civil rights rulings in the South in the 1960s. For Pimentel, if judges won’t stand up for the unpopular minority, there can be no justice in the society. Yet, while institutional safeguards promote judicial courage, they are merely vehicles. The true goal is to have judges with the internal courage to do the right thing. However, we desire that the judiciary, as a branch of government, be accountable to the citizens—that there are repercussions for unwanted actions. A simple example would be the ability to remove a judge for accepting bribes.
“Accountability is about keeping judges honest, that they don’t lapse into corruption or pursue their own agendas,” said Pimentel. “This is demanding integrity from judges.” Matching independence with courage and accountability with integrity, Pimentel has developed a unique graphic representation to illustrate the relationships. Along the x axis, low to high, is courage, while along the y axis, low to high, is integrity. Pimentel then delineates four quadrants within this graph and populates it with the type of judges / judiciary that are created by the characteristics therein. Any judge in any system falls into one of the four quadrants. SEE GRAPH NEXT PAGE