Mon | Aug 21, 2017

Light on Corruption | Perception of corruption in the judiciary erodes public trust

Published:Wednesday | June 21, 2017 | 6:00 AM
Delroy Chuck
Gavel
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A well-functioning justice system is central to effectively addressing corruption, which, in turn, is important for the development of a country. But judicial institutions are themselves corruptible and, thus, all steps must be taken to combat corruption in this regard. The words of Montesquieu that "constant experience shows us that every man invested with power is apt to abuse it" are a noticeable reminder.

Corruption and perceptions of corruption in the judiciary not only undermines the courts' credibility as corruption fighters, but further erodes public trust in the courts' impartiality. This harms or brings into question all the core judicial functions, such as law enforcement, dispute resolution, protection of property rights and contract enforcement. Subsequently, it harms the broader accountability function that the judiciary is entrusted with in our democratic systems.

By most accounts, an effective judiciary undoubtedly guarantees fairness in legal processes. And, thus, is a powerful weapon against corruption. While there is broad consensus that corruption in the court system is destructive and should be addressed, there are particular challenges involved in fighting judicial corruption.

Often, when we talk about judicial corruption, the image is that of judges taking bribes. However, judicial corruption is a lot more. It includes all forms of inappropriate influence that may damage the independence of justice, and may involve any player within the justice system, including lawyers and administrative support staff. The question of corruption is not only a matter of relations between judicial personnel and court users, it is also about internal relations in the judiciary.

The perception of petty corruption in the judiciary is systemic and an issue that many in developing and developed countries have to deal with. In a Global Corruption Report, one in 10 of the respondents who had been in contact with the judiciary over the past year, when asked whether they had paid a bribe, answered yes. The report noted that bribes offered by users of the legal system may take many forms, including illegal 'fees' that court personnel levy to do what they should do anyway. Court users pay just to get their case through the system, to influence the outcome of a given case, or to delay it. Bribes may be paid to the judge, or to assistant staff or lawyers to remove files or get the case assigned to a particular judge.

Difficult to determine actual vs perception of corruption in justice systems

Perceptions of corruption within the judicial system are sometimes just that - perceptions. And, since individuals who engage in acts of corruption will not necessarily self-report, it makes it challenging to decipher actual versus perception of corruption in the judicial system. Thus, an accurate analysis of the scope of corruption, and the vulnerable areas in the judicial system, requires a comparative assessment and corroboration of studies and opinion polls on corruption based on the perception and experience of both court users and court personnel. It also requires an analysis of official data on the criminal and disciplinary investigations into the personnel in the system.

A United Nations Development Programme 2012 study indicated that over 57 per cent of Jamaicans surveyed believe the entire justice system is corrupt, with a further 36 per cent of Jamaicans believing judges are corrupt. Nonetheless, the recent Office of the Contractor General 'Youth and Corruption in Jamaica' study, conducted by my Department of Government colleagues and I, showed that 68 per cent of the participants who were in the 10-19 age group felt that our judges have integrity.

Wanted: Systems to uncover

irregularities in the judiciary

Given that corruption in the judicial system is a problem in most countries, there is a need for systems to uncover irregularities, and discipline and dismiss corrupt officers. Just last month Justice Minister Delroy Chuck was quoted as citing delays, which are causing corruption in divorces, in that "divorce decrees have been signed by judges who do not exist" and also "instances of divorce papers stamped with outdated judge's seals". Instances such as these lead one to ask what other questionable and/or corrupt behaviour is taking place.

Inefficient judiciaries can also create a supportive environment for corrupt practices by providing users of the court with incentives to resort to bribery to circumvent established procedures, which is tantamount to 'smuggling' their way through the judicial system and speed up court proceedings. The modernisation of the judiciary, including through the increased use of technology, will improve its performance.

WHAT IS BEING

DONE TO FIGHT

Our international partners have pledged and continue to support the transformation of the justice system. It is an ongoing effort, with much more work needed. With that said, no system is corruption-free. But, what is certain, fair and equitable judicial salaries and pensions will make court personnel less vulnerable to bribery. The remuneration of judges and judicial staff will see measurable changes in morale within the system. Undoubtedly, financial resources and financial resource management are major issues that must also be addressed.

Case management issues and case overload are problems faced by many judiciaries that can have a negative impact on corruption cases. In many instances, inefficient case management limits the judiciary's capacity to deal with cases, thus leading to unnecessary delays that can discourage citizens from using courts to seek redress, or it ultimately undermines their trust in the judicial system.

 

Institutional change pivotal

 

The perception of corruption within the judicial system will likely change when the average Jamaican is confident in his or her ability to receive justice, and that justice is not only for the wealthy and connected individuals. There are many deficiencies within the system, thus institutional change - and one free from political influence - is pivotal.

The backlog of cases, the limited courtrooms and the less-than-desirable conditions of the courtrooms add to the negative perception of justice in Jamaica. The rate and volume of cases referred yearly versus the increase in personnel at the various levels within the justice system must be examined.

All of the above raise the questions: Is the Office of the Director of Public Prosecutions properly funded and staffed? What is the rate of increase in budgetary allocation to said office which deals with prosecution? These are some of the issues we must consider when we look at the system holistically and not necessarily from a piecemeal approach.

- Dr Omar E. Hawthorne is a lecturer in international relations at the University of the West Indies, Mona, and author of 'Do International Corruption Metrics Matter?'. Email: omar.hawthorne@uwimona.edu.jm.