109. The definition of the rule of law ("It's a real world we're livin' in" version)

[A leading businessman]  recounted how a judge presiding over a trial pitting him against a government department walked into his office and said: "I've got the choice between two decisions: one for you, its two million riyals (more than $10,000), one against you, it's free."

The businessman said he chose to pay, as the stakes were too high.

That's an anecdote out of Yemen.  The Agence France reporter makes the point that judicial corruption involves much more than pay-to-play: "Corruption has become so rife in Yemen that it is not just causing widespread popular discontent but also impeding economic development in one of the world's poorest countries, experts say." 

Judicial honesty is pretty much the definition of "the rule of law."  If you don't have a honest judiciary, you don't have the rule of law.

In Ontario, a local company is resisting the enforcement of a judgment rendered by a Singapore court.  I don't have an opinion about the the merits of the dispute - the International Herald-Tribune story gives few details, and what little it says makes the judgment seem pretty routine.  Nonetheless, "the risk for Singapore, regardless of the verdict in Canada, was that foreign companies might become increasingly wary about business transactions in the city-state."

Bulgaria, one of the most beautiful countries in the world, is in danger of seeing its application to the European Union rejected because of its corrupt or at best inefficient judiciary, as London's Telegraph recently reported:

Hundreds of mafia-related murders in Bulgaria remain unsolved, as investigations rarely end up in charges being brought and those that do seldom result in convictions.

Leaders of rival organised crime syndicates are the most common targets but victims have also included high-profile businessmen, such as the country's leading banker, Emil Kyulev, who was shot dead in his car in the capital, Sofia, last year.

[German Judge Sussete] Schuster said: "The statistics on ordered hits taking place on the street in broad daylight are devastating.

"Very few charges are being raised in such cases and even fewer end in convictions. Common thieves end up in custody and in prison, while offenders suspected of links to organised crime are rarely convicted or even investigated."

Here's a somewhat more positive look at Bulgaria's judiciary, which argues (with perhaps-unintended irony) that by many measures the Bulgarian system compares well to those of member EU states.   (You may need to scroll to the right to see the story.)

In Romania, meanwhile,  "Prime Minister Calin Popescu Tariceanu said [the Romanian judiciary] is a 'wretched system,' while Justice Minister Monica Macovei said last month that 70 percent of the magistrates are corrupt."  Maybe so, but the judges are PR-savvy enough to mount the same defense always heard when American judges come in for criticism: that it's judicial integrity rather than its absence that gives rise to complaint.  "Everyone thinks he is right and not the other. If judges do not agree with everyone, then they are labeled corrupt or incapable," said the President of the High Court of Cassation and Justice.  (Now, there's a job title!)

Another Romanian judge hinted darkly: "There is a sharpening of discrimination and disparagement of the magistracy, as if guilt for a possible failure of accession to the European Union is being prepared."

It's difficult to overstate the importance of an honest judiciary to the well-being of society.  A country without an honest judiciary is a nation not ruled by law.  We shouldn't forget that when we look at our own system.  Our wish that it exist in absolute, night-and-day contrast with judiciaries in Third World or ex-Communist countries shouldn't lead us to overlook that, even in the Romanian Justice Minister's scathing estimation, 30% of Romania judges are clean.  Their system isn't all Stygian darkness.  And I don't think ours is all daylight, either, nice as that would be to believe. 

But we can't approach 100% based on hope alone.  Integrity simply isn't a quality inherent in the practice of any profession, no matter how noble.  Scientists fake results, highly-ranked intelligence officers are suspected of deals with contractors, priests have sex with altar boys (and do even more worse things to nuns),  and (if you can believe it) even Steve Garvey lives a life not entirely beyond reproach. 

I once saw a debate on Northern Ireland.  Betty Williams, one of the "Peace Ladies," spoke first.  And then Bernadette Devlin MacAlisky, standing next to the podium because she was too short to see over it, with the light shining on the side of her face, said in a low growly voice: "But it's a real world we're livin' in, Betty."

Indeed.  So it should be a source of some uneasiness that in the United States we have no serious mechanism for policing the judiciary.   State oversight commissions, to break the news gently, are not uniformly effective or responsible.   (See post 104.)  The Constitution intends for the Senate to shoulder responsibility for the federal judiciary, but it doesn't.  (See post 108.)   Basically we just hope our judges will never stray. 

The Australian model, as described here, establishes a commission that reports to Parliament, spreading its information on the public record, which pressures elected politicians to take action when things go wrong.  An arrangement like that could work in the U.S. only if the commission had no discretion to keep any secrets.

(The argument that judicial and attorney disciplinary proceedings must be confidential because the public can't grasp the difference between serious and frivolous complaints needs to be laughed out of court.)

The May 8, 2006 New Yorker quotes "a Qaddafi insider" saying that Libya's leader "is very happy to have corrupt people working for him.  He'd much rather have people who want money than people who want power, and so he looks the other way and no one threatens his total control of the country." 

Qaddafi's insight should be compared with Chief Justice Roberts' year-end report on the judiciary, in which he picked up his predecessor's constant cry that federal judges need more money.  Roberts announced that from 1990 to 2005, a grand total of 21 federal judges quit before reaching retirement age, as did 71 judges aged 65 or more. 

If they all quit for financial reasons, as Roberts asked his readers to assume, it means we got rid of 92 judges who valued money over power.  A judge who values money that highly is the type of judge most likely to send word to a litigant that he faces a choice between two decisions, only one of which is free. 

I think we ought to be disturbed that the number is as low as Roberts reports.

Comments

[Guest]

Hoo-wee. Man, do you realize you just compared the Federal Judiciary to the judiciary in Yemen because the Chief Justice thinks Federal Judges should get a raise? And because some Federal Judges may have moved on from their posts because they could make, what, 5-10 times more money for themselves and their families for the same or less work? And that this came right after the statement that "If you don't have a honest judiciary, you don't have the rule of law." Where did you get this huge chip on your shoulder? It's kinda weird.

[Joel Jacobsen]

Anon's comment refers to an earlier version of this post. Post 111 responds to it.