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ENHANCING JUDICIARY`S ABILITY TO CURB CORRUPTION - A PRACTICAL GUIDE

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1.3 CAUSES AND REMEDIES TO JUDICIAL INEFFICIENCY IN

DETERRING CORRUPTION

The global fight against corruption depends upon the effectiveness of judicial systems. Only an

independent, accountable, impartial judiciary, adequately empowered to adjudicate all the cases in

its jurisdiction

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is able to uphold individual rights and prevent abuse of power by state and non-state

actors. Yet, TI Chapters’ work, as well as that of other organizations, has shown that the judiciary

is often unable or unwilling to fulfil its mandate effectively. Corruption continues to distort judicial

processes in many countries and effective interpretation and application of anti-corruption laws and

standards is often still lacking.

Causes

The causes for judiciary`s failures in sanctioning corruption are extremely diverse and range from

lack of independence, integrity and accountability, to lack of courage, will, appropriate instruments or

adequate resources. Yet, these causes can be structured into two major categories:

Core vulnerabilities that hamper the effectiveness of the judiciary as a whole,

irrespective of

the legal nature of the cases.

The core vulnerabilities are those aspects that affect the due process and overall functioning and

performance of the judiciary the result of an improperly established rule of law in the country.

In these cases, the constitutional safeguards for the judiciary are not sufficient to secure its

independence, transparency, accountability or institutional capacity, or they are not implemented into

a comprehensive legal framework that ensures their adequate application in practice. For instance,

the appointment of judicial officials creates biases that affect the independence and impartiality of

the newly appointed judges. Or the separation of powers is not adequately ensured and political

interference by the Parliament affects the independence and impartiality of the judiciary. Or conflict

of interest laws are not adopted further compromising the integrity of the judiciary. Or the lack of

accountability mechanisms allows judicial officials to abuse their decision-making power in favour

of a few. The core vulnerabilities must always be assessed against the national context where they

happen, in order to determine their real scope and appropriate solutions.

Structural and functional gaps and loopholes that affect the phases of the criminal justice

system

Loopholes exist when regulations or institutional instruments are missing. Gaps exist when there

is a discrepancy between existing legal provisions and current judicial practices. Both loopholes

and gaps prevent corruption cases from being effectively processed by criminal justice systems.

Loopholes are usually the result of a poor legislative process or the lack of executive allocation of

resources. Gaps are often the result of little judicial accountability in practice, despite the existence of

the formal framework. If occurring, either gaps or loopholes prevent cases from following the normal

course of the criminal justice system and are usually left unsanctioned due to procedural trickiness.

It is important to note that the judiciary may still fail to effectively accomplish its role in sanctioning

corruption caused by gaps and loopholes, despite the existence and enforcement of constitutional

safeguards

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7. Guidance Note of the Secretary-General, UN Approach to Rule of Law Assistance, April 2008, page 6