Judicial Responsibility & Accountability

Abstract & Research Outline
Judicial Responsibility& Accountability
Jamil Salem & Reem Al-Botmeh

A. Abstract

Judicial Responsibility is one of the sensitive issues to discuss it object is the individual legal system and the judiciary in this system even more, the judge and court. It is an institutional and individual matter that is related to the judiciary and its institutional function as well as the Judge exercise of these functions. Judicial Responsibility has multi facets expressions which differs form one legal system to another depending on the difference in viewing as a matter for the parties or a public mater concern as well as the case as in systems. The level of powers that the Judiciary has in certain legal system is another major differentiating factor, as is the openness or secrecy of the judicial proceedings. Nevertheless, the issue of responsibility always reflects a certain relationship of the subject to social values which differs from one society to another as well from time to time.

The term Judicial Responsibility is not a clear cut one. It covers both judicial power and accountability for use of that power. Power in this context signifies not only legal authority but also legal duty of the judges and courts, to exercise the governmental function of adjudication. Furthermore, Judicial responsibility is not only the area of legal practice that encompasses the duties of the judge to act in a professional manner, obey the law, avoid conflicts of interest, and put the interests of clients ahead of his/her own interests. A professional responsible judiciary reconciles the twin goals of democratic legitimacy and legal legitimacy. This requires much more than restating platitudes about independence and accountability. It elaborates on aspects such as the rational of judicial independence, the relation between judicial performance systems and promotion, recruitment procedures, evaluation during initial and continuing education programs, codes of ethics, and the role of the judiciary towards other state branches and society in general.

The debate over the qualities that make a good judge seems intractable because there is no shared set of expectations about a judge’s role in society. Some accept as a political inevitability that judges are decision makers and de facto legislators, and accordingly evaluate judges by the political impact of their decisions. Others expect judges to fight to preserve their complete independency as if any form of accountability would pose a threat. Judges perform a public service and are part of a State institution. It is thus fully appropriate to evaluate how they perform their duties, always bearing in mind that they are part of the judicial system, which has to be considered as a whole.

A research on the functioning of professional evaluation, accountability, and discipline of judges has both scientific and practical implications. The empirical analysis of who does what in performing those functions in the various judicial systems (the Ministry of Justice, the judicial councils, elected representatives of the judiciary, the judicial hierarchy, etc.) illustrates also the varying conceptions of internal and external judicial independence.

Through the comparative analysis of the solutions adopted by different countries we will provide basic information needed to evaluate important features of the relation between judicial independence and judicial accountability: in particular it will raise the question of what is the proper balance between the protection of judicial independence in the evaluation of professional performance on the one hand and other no less important values like those of guaranteeing the citizens judicial efficiency and high professional qualifications of those that have the solemn responsibility to administer justice.
By critically assessing and comparing the legal and institutional framework for judicial and professional responsibility in the Palestinian Authority with other countries, it is hoped to highlight the kind of reforms that are more urgently needed to contribute to policy directives that helps both those in power and those working in the judiciary and judicial training programs.

The actual gaps and needs in the Palestinian legal and institutional framework will be identified. Best practice examples will be an important element to identify practical solutions and options to develop a regulatory framework that enables the judiciary to fulfill its role in enhancing and protecting the rule of law.
To be practical, specific and tailor, the research team will develop recommendations how to overcome existing deficits in the most efficient and effective manner.

We will view the issue of Judicial Responsibility in three levels

B. Research Outline


I. The Conceptual Framework of Judicial Responsibility


This part of the research sets out to outline the elements of Judicial Responsibility and the common approaches to it, thus attempting to bring a clear understanding of the concept of judicial responsibility and its link with concepts of Judicial Immunity. It will also discuss the tension between Judicial Accountability and Judicial Independence.

II. Mapping out Models and Types of Judicial Responsibility

In order to understand in details the issue of Judicial Responsibility and Accountability it is important to understand the imperatives it entails. Hence, it is important to establish the different types of accountability as well as the different models in various legal systems. There are various ways to classify types of judicial accountability it can be Individual and collective, formal or Scrutiny by civil society, or content, process and performance accountability. It can take as well different categorization which you find literature classifies accountability into, Political accountability, societal accountability, legal accountability of the state and legal accountability of the judge. From this various types of accountability emerge various models n different legal systems.

In this context we will examine the element of Political accountability which includes recruitment of Judges, initial and continuing training and tenure the extent to which Judges are accountable to other branches of the government for appropriation and definition of jurisdiction. Decisional accountability, which includes the manner in which judges are held accountable for rulings and decisions. This covers the content, process, performance as well as evaluation of the performance and competence of judges. Behavioral accountability involves judicial conduct made subject to disciplinary measures. Finally, Legal Accountability, which involves the personal accountability of the judge as well as the state legal accountability.

III. Which Model of Judicial Responsibility for Palestine?

This part will examine the Judicial Responsibility in the context of the Palestinian Judicial system in order first to illustrate the elements of this Responsibility, establish to which model does it fellow, and asses the efficiency of it. Criticisms (if any) that are levied in the Palestinian Authority with reference to the various aspects of Judicial accountability mentioned above.

C. Methodology

In this study we will take the following steps to achieve the above mentioned outline:
- Comparative approach which depends on reviewing the available literature on the issue at hand from various legal systems.
- Interviewing numbers of judges in order to establish the current practice.
- Critically asses the current laws and regulation in hand.

D. Bibliography

- Andrew Le Sueur: Developing Mechanisms of Judicial Accountability in UK, 24. Journal of Legal Studies, Oxford 2004;

- Andras Sajo: Judicial Integrity, Martinus Nijhof Publishers, Leiden/Boston, 2004;

- Antony Lamer: The tension Between Judicial Accountability and Judicial Independence: Canadian Perspective, 8. Singapore Academy of Law Journal, Singapore 1996;


- A.T. Kronman: The lot lawyer, Failing Ideals of the Legal Profession, Cambridge, London, 2003:

- Cynthia Grey: The Line between Judicial Error and Misconduct: Balancing Judicial Independence and Accountability, 32 Hofstra Law Review, New York 2004

- Danzl: Kommentar zu Geschäftsordnung für die Gerichte I. und II. Instanz, Manz Verlag, Wien 2002;

- Fabrizy: Die österreichische Strafprozessordnung, Kurzkommentar, 9. Auflage, Manz Verlag, Wien 2004;

- Fasching: Kommentar zu den Zivilprozessgesetzen, 2. Auflage, Manz Verlag, Wien 2000;

- G. Canivet and J. Joly-Hurard, La déontologie des magistrates, Dalloz, 2004;

- Heyde: Justice and Law in the Federal Republic of Germany, Heidelberg, 1994;

- Hoffmann-Riem: Modernisierung von Recht und Justiz, Frankfurt a/M, 2001;

- James Andrew Wynn & Eli Paul Mazur: Judicial Diversity: Where Independence and Accountability Meet, 67. Albany Law Review, New York 2004;

- Jeffery M. Shaman: Judicial Immunity from Civil and Criminal Liability, 27. San Diego Law Review, San Diego 1990;

- J. Vincent, S. Guinchard and A. Arinaud: Institutions judiciaires Organisation. Juridictions. Gens de justice, Dalloz 7th ed., 2004 ;

- Klaus F. Röhl, Gerichtsverwlatung und Court-Management in den USA, Köln, 1993;

- Kopp-Ramsauer, Verwaltungsverfahrensgesetz, 8. ed., 2003;

- Lois G. Forer: Judicial Responsibility and Moral Values, 29. Hastings Law Journal, 1978-1979;

- Martian Friedland: Reflection on a Place Apart: Judicial Independence and Accountability in Canada, 68 University of New Brunswick Law Journal, New Brunswick 1996;

- Maxmilian J.B. Welker: Judging the Judges: A Case Study in Judicial Responsibility, 5. University of Puget Sound Law Review, Washington 1980-1981;

- Muro Cappellite: Who watches the Watchmen? Comparative study on Judicial Responsibility, 31 American journal of Comparative Law

- M. Fabri, J.P. Jean, P. Langbroek and H. Pauliat: L’administration de la justice en Europe et l’évaluation de sa qualité, Paris, Montchrestien, 2005;

- Michil Graziadi & Ugo Matti: Judicial Responsibility in Italy: A New Statue, 38. American Journal of Comparative Law, New York 1990;


- Odette Buitenda: Good judges are not born but made, recruitment, selection and the training of judges in the Netherlands, in: Marco Fabri and Philip Langbroeck, eds., The Challenge of Change for Judicial Systems, Amsterdam/Washington 2000;

- Randy Holland & Cynthia Gray: Judicial Discipline: Independence with Accountability, 5 Wiedner Law Symposium Journal, 2000;

- Robert E. Derchsel: Accountability, Representation and the Communication Behaviour of Trial Judge, 40 Western Political Quartely, Utah 1987;

- Rojer Handburge: Judicial Accountability and Independence: Balancing Incompatibles, 49. University of Miami Law Review, Miami 1994- 1995;

- Sandar Berns: Judicial Decision Making and Moral Responsibility, 13. Adelaide Law Review, Adelaide 1991;

- Schmidt-Ränsch: Deutsches Richtergesetz, 5th edition, 1995;


- Sephar/Fellner: Richterdienstgesetz (RDG) und Gerichtsorganisationsgesetz (GOG). Kommentar, 3. Auflage, Manz Verlag, Wien 1999;

- Stohanzl: Jurisdiktionsnorm und Zivilprozessordnung, 15. Auflage, Manz Verlag, Wien 2002;


- Toharia, Jose Juan: “The Organization, Functioning, and Evaluation of the Spanish Judicial System, 1975-2000: A Case Study in Legal Culture,” in Lawrence M. Friedman & Rogelio Perez Perdomo, Legal Culture in the Age of Globalization: Latin America and Latin Europe, Stanford, CA: Stanford University Press, 2003;

- Yohav Dotan: Judicial Review and Political Accountability: the Case of the High Court of Justice in Israel, 32. Israeli Law Review, Tel Aviv 1999;

- Brochure of the Austrian law professions: Dr. Wolfgang Fellner, Dr. Anton Paukner: “Die Organisation der Rechtsberufe in Österreich”, JMZ 600.00/25-III.1/2002; available at http://www.bmj.gv.at/ „Infobroschuren“;

- Austrian laws and judiciary available at: http://www.ris.bka.gv.at/;


- The Bangalore Code of Judicial Conduct, drafted by the Judicial Group on Strengthening Judicial Integrity;
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- Justice et institutions judiciaires, sous la direction de P. Truche, La Documentation française, 2001;
-