What Could Be Done 

While being a necessary condition to maintain human rights, independence of the judge is not sufficient. To begin with, independence that is structurally and procedurally guaranteed may still be undermined in practice. Also, structure and procedures cannot fully regulate the way people operate; as scholars of organisational change have documented, organisation and professional culture are at least of the same importance.


A culture that views independence as being exercised within a framework in which policies or wishes of the executive branch of government, in particular of its highest leaders, cannot be challenged, will more easily accept court decisions that violate human rights[1]. This may even lead to a situation in which judges not so much fear that their independence to decide in controversial cases will be limited by ‘guidance’ from above, but that they expect and encourage such guidance. In this situation maintaining professional standards within the system is difficult, and outside questioning of judges’ records may be the only option.


Given the sensitivity of outside criticism of judges, it may be important to explore ways to do this within the profession, at international level. The International Association of Judges, the main international professional organisation, has already recognised in their membership policy that not all judiciaries around the world operate with sufficient independence. The IAJ membership policy says that to join the IAJ, “the achievement of judicial independence in the concerned country will not be considered a criterion for admission of members. However, in circumstances where judicial independence has not been achieved, the association must demonstrate that it is making a concerted effort to achieve judicial independence.” Ways to apply a more in-depth system of new and existing member accreditation should be explored.


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[1] Some of the mechanisms at work are being touched upon in the 2014 paper Judicial Independence: Some Recent Problems, issued by the International Bar Association Human Rights Institute, https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=15ACEA39-AEEE-46EF-AB76-1CD18D7571CC