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Guidance for Promoting Judicial Independence and Impartiality

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OFFICE OF DEMOCRACY AND GOVERNANCE ...promoting the transition to and consolidation of democratic regimes throughout the world. GUIDANCE FOR PROMOTING JUDICIAL INDEPENDENCE AND IMPARTIALITY Revised Edition January 2002 Technical Publication Series Office of Democracy and Governance Bureau for Democracy, Conflict, and Humanitarian Assistance U.S. Agency for International Development Washington, DC 20523-3100 TO ORDER THIS DOCUMENT FROM THE DEVELOPMENT EXPERIENCE CLEARINGHOUSE: · Please reference the document title (Guidance for Promoting Judicial Independence and Impartiality Revised Edition) and document identification number (PN-ACM-007). · USAID employees, USAID contractors overseas, and USAID sponsored organizations overseas may order documents at no charge. · Universities, research centers, government offices, and other institutions located in developing countries may order up to five titles at no charge. · All other institutions and individuals may purchase documents. Do not send payment. When applicable, reproduction and postage costs will be billed. Fax orders to (703) 351-4039 Attn: USAID Development Experience Clearinghouse (DEC) E-mail orders to [email protected] ABOUT THE TECHNICAL PUBLICATION SERIES The USAID Office of Democracy and Governance Technical Publication Series was launched in March 1998. The series includes publications intended principally for USAID personnel; however, all persons interested in the sector may benefit from the series. Authors of individual publications may be USAID officials and/or other individuals from the public and private sector. The Office of Democracy and Governance reserves the right to review and edit all publications for content and format and all are subject to a broad USAID review process. The series is intended in part to indicate best practices, lessons learned, and guidelines for practitioner consideration. The series also includes publications that are intended to stimulate debate and discussion. A list of other relevant publications and ordering information are included at the back of this document. ABOUT THIS PUBLICATION Judicial independence lies at the heart of a well-functioning judiciary and is the cornerstone of a democratic, market-based society based on the rule of law. In examining it, this study seeks to meet three objectives: (1) to test the validity of our current programmatic approaches to judicial independence; (2) to bring together experts in the field to address the most intransigent problems involved in promoting judicial independence; and (3) to produce a document that would help to guide our field officers. Comments regarding this publication and inquiries regarding judicial independence and impartiality should be directed to Michael Miklaucic, Acting Team Leader Rule of Law Team Tel: (202) 712-1982 Fax: (202) 216-3231 [email protected] Office of Democracy and Governance Bureau for Democracy, Conflict, and Humanitarian Assistance U.S. Agency for International Development Washington, DC 20523-3100 More information, including electronic versions of the DG Offices Technical Publication Series, is available from the DG Offices Intranet site at http://inside.usaid.gov/G/DG/ and USAIDs democracy Internet site at http://www.usaid.gov/democracy/ ABOUT THE OFFICE The Office of Democracy and Governance is the U.S. Agency for International Developments focal point for democracy and governance programming. The DG Offices role is to provide USAID and other development practitioners with the technical and intellectual expertise needed to support democratic development. It provides this expertise in the following areas: C Rule of Law C Elections and Political Processes C Civil Society C Governance ACKNOWLEDGMENTS Gail Lecce Gail is the DG Offices acting deputy director. She has a B.A. from Pennsylvania State University in English literature and a J.D. from Harvard Law School. Gail worked for a law firm in Hawaii before joining USAID in the Office of the General Counsel in 1979. Her USAID career has been split between general counsel and democracy officer positions. Assignments have included regional legal advisor for Central America (posted in Costa Rica), assistant general counsel for contracts, and head of the democracy offices in El Salvador and Honduras. Gail managed the judicial independence project for the DG Office, including authoring sections of this report and editing the technical papers and case studies. International Foundation for Election Systems The International Foundation for Election Systems (IFES) provides professional advice and technical assistance in promoting democracy and serves as an information clearinghouse on democratic development. IFES is dedicated to the success of democracy worldwide and the prospect that each person in every corner of the world is entitled to have a free and informed say in how he or she is governed. IFES recognizes that democratic governance is an evolving and dynamic process, created by and meeting the needs of the people it serves. IFES has worked in over 100 countries, lending its expertise in the following areas: elections, rule of law, governance, and civil society. IFES was the principal contractor on this judicial independence study. Sandra Coliver Sandy, IFES former senior rule of law advisor (1999-March 2001), coordinated the judicial independence project and has managed or participated in rule of law programs around the world. She worked in Bosnia (1996-1998) with the United Nations, the OSCE, and the International Crisis Group. For five years she served as law program director of Article 19, the International Centre Against Censorship, headquartered in London. She practiced law in San Francisco and has taught courses on international law and human rights at Boalt Hall (U.C. Berkeley) and Washington College of Law. She currently is the executive director of the Center for Justice and Accountability, an NGO dedicated to holding human rights abusers accountable. Keith E. Henderson Keith currently serves as the senior rule of law advsior and research fellow for IFES. He also teaches a course entitled Global Corruption and the Rule of Law Through a Technological Lens at American Universitys Washington College of Law. From 1993 to 1998 Keith served as the senior rule of law and anti-corruption policy advisor at USAID and launched the Clinton/Yeltsin $50 million Rule of Law Initiative in the countries of the former Soviet Union. Keith reviewed and commented on drafts of this document, primarily focused on the issues of civil society, corruption, and enforcement, and continued to advise the project after joining IFES in May 2001. Authors of the Regional and Country Studies and Concept Papers Louis Aucoin Louis is a professor of comparative law, Boston University Law School. He has worked on rule of law programs in Haiti, Indonesia, Cambodia, Chad, Madagascar, and East Timor, and authored an annotated handbook to the French constitution. William E. Davis Bill is a principal and founder of DPK Consulting. For the past 24 years he has worked in the administration of justice at the international, federal, and state levels. He has worked as a consultant to Authors of the Regional and Country Studies and Concept Papers (continued) USAID, the World Bank, and the Inter-American Development Bank, including on projects in Argentina, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Panama, Peru, Uruguay, Venezuela, Kosovo, Pakistan, and West Bank/Gaza. Previously, Bill served as the director of the Administrative Office of the Courts and secretary to the Judicial Council and the Commission on Judicial Appointments for the State of California; the U.S. circuit executive for the federal courts in the nine western states and Pacific Territories; and director of the Administrative Office of the Courts for Kentucky. Giuseppe Di Federico Giuseppe is full professor of law, University of Bologna; founding director of the Research Center for Judicial Studies, University of Bologna (since 1981); founding director of the Research Institute on Judicial Systems, Italian National Research Council (since 1992); and first president of the European Research Network (since 1999). He has been an expert consultant on judicial reform issues for numerous organizations, including the World Bank (Argentina) and U.N. Development Programme (Vietnam), and for several former communist countries of Eastern Europe. He collaborates on an ongoing basis with the École Nationale de la Magistrature (Bordeaux) and the Institut des Hautes Études sur la Justice (Paris) in planning seminars for judges, prosecutors, and European scholars. Stephen Golub Stephen is an international law consultant and law school lecturer in international development law and policy at Boalt Hall School of Law, University of California at Berkeley. He recently directed a Ford Foundation review of its law programs worldwide, and has been involved in rule of law programming for 15 years, six of those based in Asia. Mira Gur-Arie Mira is a senior judicial education attorney for Inter-judicial Affairs, Federal Judicial Center, the education and research agency for the U.S. federal judiciary. Linn Hammergren Linn is a senior public sector management specialist with the Latin America Regional Department, World Bank, working in the areas of judicial reform and anti-corruption strategies. Previously, she spent 12 years managing administration of justice projects for USAID. Erik Jensen Erik is director of research and a senior fellow of the Transnational
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