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The Struggle to Develop Independent Courts in New Democracies


Contents
1. Introduction
2. The current situation in new democracies: Russia and Zimbabwe
3. The importance of independent courts to democracy
4. The development of independent courts in Russia and Zimbabwe
5. Conclusion
6. Bibliography

Introduction
In the modern world democracy has been recognized as the basic condition of the realization of human rights and equal opportunities of all citizens. At the same time, the way to the recognition of democracy in its Western form by the world community had a long way to go and nowadays, there are still some states that either attempt to find their own way to democracy or simply ignore all democratic principles that are accepted by the world community.
However, there is also another category of states that are traditionally called new democracies. In fact, these states have accepted the Western democracy and attempt to develop the basic democratic institutions. Naturally, as these country lack the experience in this respect, this process is often accompanied by numerous problems and barriers that societies of new democracies have to overcome. In such a situation, it is particularly important that new democracies successfully developed three branches of power legislative, executive and judicial that could be really independent from each other. Such a division would guarantee the rule of democratic principles in these states but, unfortunately, for many countries known as new democracies the development of independent courts has become an extremely serious problem, which is even more difficult than the development of relatively democratic legislative and executive powers.
Obviously, independent courts are the major condition of the supremacy of law and democracy in all countries, especially in those where democracy is new and people do not really know what it actually means to live in a democratic country. This is why it is really important to these countries to struggle for independent courts which could guarantee the realization of the human rights of all citizens and the supremacy of law, regardless all political and economic obstacles that exist in countries of new democracy, such as Russia and Zimbabwe where the problem of human rights is considered to be particularly serious and, where courts are only on their way to gain real independence.
The current situation in new democracies: Russia and Zimbabwe
It is hardly possible to properly understand the exiting problem of independent courts in new democracies and struggle of the advocates of human rights in these countries for the independence of courts without the brief analysis of the current situation in new democracies since, to a significant, socio-economic and political situation in these countries determines the development of independent courts. To put it more precisely, the development of independent courts often turns to be dependent on socio-economic and political factors that define the development of democracy at large in these countries.
In terms of this paper the situation in Russia and Zimbabwe as typical representatives of new democracies will be discussed since these countries are often severely criticized for the poor development of independent courts and systematic violation of human rights. To a significant extent, these countries are similar and characterized by a relatively low level of the development of democracy and, what is more, often the political leaders of both Russia and Zimbabwe are considered to be quite authoritarian and, thus, it is believed that they slow down the process of democratization of their countries (Habermas 1994).
First of all, it should be said that both countries have started democratic changes not a long time ago and the development of democracy in Russia and Zimbabwe do not dates back more than a couple of decades ago. However, the ways countries actually arrived to the necessity of democratic change were quite different and it is very important since the past of Russia and Zimbabwe produce a profound impact on its modern judicial system and independence of courts.
As for Russia, this country used to be the superpower but the state was purely totalitarian where human rights were treated formally and, in actuality, citizens were deprived of an opportunity to exercise their basic human rights recognized by the world community. In such a way, it is possible to speak about the lack of experience of Russian people to use legal and democratic means of struggle for their rights and courts were traditionally fully subordinated to the ruling Communist party which controlled all spheres of life.
Naturally, the situation could not be changed in a day and nowadays, democracy is still a kind of ideal many Russians strive for, but, unfortunately, the current political regime headed and created by the current Russian President Vladimir Putin does not contribute to the democratization of Russian society. Practically, this means that the political and economic elite still defines the policy of the entire country while ordinary citizens have little opportunities to exercise their human rights and, what is more, they are imposed to the arbitrary rule of the local officials and bureaucrats and nouveaux riches close to Kremlin.
In fact, it is hardly possible to speak about the equality of ordinary citizens and the two categories of Russian population mentioned above, i.e. officials and oligarchs, or simply economic elite of the country. In actuality, it seems that all the power in Russia is concentrated in Kremlin, i.e. in the hands of the President and, thus, ordinary citizens can hardly protect their rights even in courts, which also turn to be dependent on the ruling elite of the country.
Speaking about Zimbabwe, the current situation does not differ from Russia dramatically, though the development of democracy in this country was basically linked with the gaining of independence and not the fall of the totalitarian regime as it was in Russia. In Zimbabwe, democracy was viewed as one of the ways to the independence of the country.
However, as the independence was gained the situation with democracy had started to deteriorated progressively. Similarly to Russia, all the power was concentrated in hands of the current President Mugabe who, like his Russian colleague, oppresses the opposition and uses authoritarian methods in his policy. As a result, this created a substantial disproportion in Zimbabwean society when political elite and economic circles close to the President are in an advantageous position while the rest of society often suffers from discrimination and oppression of their civil rights.
At the same time, it should be said that socio-economic situation in both countries is also quite difficult. Naturally, the progressing poverty of the vast majority of the population cannot contribute to the democratization of the society since democracy turns to be deprived of its financial basis. Moreover, societies of both countries tend to polarization on the basis of wealth that leads to the situation when the gap between rich and poor grows dramatically. As a result, civil rights become the first ‘victim’ of such polarization of society and the lack of independent courts only deteriorates the situation in Russia and Zimbabwe.
Nonetheless, there exist a significant difference between Russia and Zimbabwe. As an ex-superpower, Russia is a subject of an international concern and its problems draw attention of the leading states of the world, including the US. this is why developed democracies often both criticize and attempt to help Russia to overcome the existing problems and develop democracy, while Zimbabwe often turns to be out of the sight of the political leaders of the most powerful and democratic states of the world. This is why Zimbabwe has to make more efforts and need more international support to get democracy than Russia in all spheres of life, including its judicial system.
The importance of independent courts to democracy
Obviously, new democracies such as Russia and Zimbabwe have a lot of problems to solve. At first glance, it seems as if the existing socio-economic problems, which put the masses of people beyond the ceiling of poverty, are more important than the lack of independent course. The same may be said about political problems in Russia and Zimbabwe for the existing authoritarian regimes are really far from the democratic ideals and basic principles of democracy while the opposition is too weak that threatens to the future democratization of the country.
However, it is an erroneous view since it is impossible to focus on socio-economic problems and ignore the problem of independent courts or, to put it more precisely, the lack of independent courts. In actuality, independent courts can be the effective tool that can lead both Russia and Zimbabwe to democratization and contribute to the development of civil society where human rights and equal opportunities would be the highest values.
In this respect, it is worthy of mention that independent courts should be a real power in new democracies as they are in developed democracies. In actuality, independent courts, being the basis of an effective judicial power, are traditionally viewed as independent institutions that can control legislative and executive power and provide the normal fulfillment of laws and juridical norms. Moreover, it is independent courts that guarantee all citizens that their human rights are protected and that all citizens without exception have equal opportunities to realize their rights which cannot be violated by any person or organization, including state (Brown 1993).
In such a way, independent courts should be the institution where citizens, being oppressed or deprived of certain rights or opportunities, could appeal to and find the justice. Obviously, the normal functioning of independent courts contribute to the democratization of society as citizens realize that their rights are protected and political and economic elite is constantly surveyed by the judicial power. As a result, the risk of violation of laws, especially human rights, decrease dramatically and their would be little opportunities to completely ignore rights as Russia does in Chechnya, for instance, where people are simply deprived not only of basic human rights but are even deprived of an opportunity to appeal to a court. What is more, even if people appeal to a court, there are little chances that the ruling of the court would be really objective and independent.
Consequently, new democracies need to develop the institution of independent courts. Otherwise, the risk of deterioration of the situation in such countries as Russia and Zimbabwe will be quite probable since these states are losing those few benefits of democracy that Russia has gained after the fall of the totalitarian regime and Zimbabwe has gained with independence.
The development of independent courts in Russia and Zimbabwe
Taking into consideration the current situation in Russia and Zimbabwe, it is possible to estimate that the development of independent courts in both countries is insufficient and, what is more, it is hardly possible to speak about real independence of courts in these countries. Naturally, the right defenders struggle for the development of independent courts but, at the moment, their efforts are apparently too weak compared to the authoritarian power of states and dominance of oligarchy.
Speaking about Russia, it is worthy of mention that courts can hardly be independent because of a variety of factors that need to be eliminated. For instance, it is not a secret that judges receive low salaries and are therefore susceptible to corruption. By the way, this problem is also typical for Zimbabwe where the salaries of judges are even lower and the level of corruption in both countries is practically equal (Habermas 1994).
Naturally, it should be said that the administration of Russian President has recognized this problem and pledged to raise resources allotted to the judiciary system, no increases have been made, and corruption still remains a serious problem in Russia.
Similarly in Zimbabwe the problem of corruption also remain one of the major problems and judges often are dependent on their relatively low socio-economic status and inability to resist to corruption without sufficient support from the part of the state.
Furthermore, it should be said that judges in both countries are often subject to pressure from powerful individuals who may be interested in some cases which can bring them political or economic benefits. In this respect, it is worthy of mention the recent case of Mikhail Khodorkhovsky in Russia who has been trialed and imprisoned, though, in actuality, this outcome of the trial turned to be quite beneficial for the competitors of the businessman.
At the same time, the governments of both countries tend to influence judicial system at large and courts and judges in particular. In fact, the governments of Russia and Zimbabwe use judiciary selectivity as a tool to secure its own political objectives, thereby undermining the integrity of the system as a whole (Chomsky 1993). In other words, the political powers of Russia and Zimbabwe uses courts in their own interests, thus, submitting courts to their will and depriving them of independence.
In this respect, it is necessary to underline that often prosecutors abuse the judicial system by bringing criminal cases under falsified charges in order to target outspoken critics of the government (Chomsky 1993). In such a way, it is possible to speak about the intentional use of courts by the government in order to oppress the opposition and critics of the existing regime that is apparently totally unacceptable for any democratic country but may be often observed in new democracies. For instance, in Russia, in recent cases, prosecutors have brought such investigation under national security legislation in the collaboration with the Federal Security Service, the former KGB. As a result, the ruling regime attempts to limit not only rights of citizens, for instance, limiting the freedom of speech forbidden the spread of important information under the pretext of the struggle against terrorism, but also creates a judicial basis to limit the power of courts and their independence as formally courts should observe the laws and, if the law, for instance, the law concerning the freedom of speech, is not violated, courts cannot change the situation. Practically it means that if, under existing legislation in Russia some information cannot be delivered to the public, courts often turn to be unable to change the situation.
At the same it should be said that Russian and Zimbabwean political and legislative powers realize that the existing legislation and situation should be improved but the attempts to develop court independence and create more judicial influence on the prosecutorial process, have actually failed since, at the moment, this does not serve as an effective check on arbitrary arrests, detentions, investigations, or prosecutions in Russia and Zimbabwe.
Moreover, judges in both countries always feel a permanent pressure. To put it more precisely, in criminal courts, where the conviction rates in cases heard by judges is extremely high, judges fear that they will be dismissed or forced to resign if they do not convict high numbers of defendants and issue sentences that comply with prosecutor’s request. For instance, recently in Russia, the judge Alexander Melikov was forced to resign due to pressure he received from a high ranking judge after issuing a lenient but legal sentence in a case involving a non-citizen.
Also, it should be said that, instead of increasing independence of courts, political leaders of Zimbabwe and Russia attempt to increase the control over the appointment of judges making them in such a way even more dependent on the political power that is apparently undemocratic.
In the result of such oppression of civil rights of citizens and the refusal from providing courts with higher level of independence, the opposition of defenders of human rights grows. Naturally, it is not only professionals who are interested in independent courts but ordinary citizens as well because, in actuality, independent courts is practically the only effective tool they can use in response to the pressure of political and economic elite and discrimination ordinary citizens often suffer from in society where democracy is still too weak while inequality is too strong, like in Russia and Zimbabwe.
However, it would be a mistake to think that the struggle of ordinary citizens and defenders of human rights for independent courts is useless. In stark contrast, new democracies, such as Russia and Zimbabwe, are still democracies regardless serious problems the countries suffer from. As a result, citizens have an opportunity to create independent public organizations that can struggle for their rights, including the struggle for the independence of courts. At the same time, such organizations can draw the attention of international organizations to the problems of the new democracies discussed above as well as the attention of political leaders of developed democracies. Moreover, such organizations can also develop effective programs of overcoming the existing barriers on the way of courts to independence.
In this respect, it is worthy of mention that such organizations attempt to hold conferences and symposiums targeting at the solution of the problem of the development of independent courts. For instance, in September 2004, the SADC symposium on Administration of Justice was organized in Zimbabwe which included in its program the development of independent courts by means of increasing the pressure on the government by public organizations that focus on the protection of human rights, such as Zimbabwe Lawyers for Human Rights, the Law Society of Zimbabwe, and others.
Conclusion
Thus, taking into account all above mentioned, it is possible to conclude that nowadays new democracies face a number of problems and one of the major one is the weakness of courts in these countries. As the analysis of the current situation in Russia and Zimbabwe has shown, the courts of new democracies are not really independent, instead they are under a permanent pressure from the part of a state and economic elite of the countries. This is why they cannot be objective and fulfill their major function control the exercise of law and protect the rights of citizens of new democracies. Naturally, such a situation in the judicial system threatens to the future of new democracies and, thus, the development of independent courts is an essential condition of the further democratization of these countries. In this respect, the role of public organizations and civil conscience of citizens are getting to be of a paramount importance, while developed democracies, in their turn, should also possibly support the struggle for independent courts in new democracies.

Bibliography:
1. Bookchin, Murray. The Philosophy of Social Ecology, Montreal: Black Rose Press, 1995.
2. Bookchin, Murray. Remaking society. Montreal: Black Rose Press, 1990.
3. Brown, L. Suzan. The Politics of Individualism, Montreal: Black Rose Press, 1993.
4. Chomsky, Naom. The prosperous few and the restless many, Odonian Press, Berkeley California, 1993.
5. Dryzek, John. “Ecology and discursive democracy” Capitalism, Nature, Socialism, vol 3(2) June 1992,p. 37.
6. Habermas, Jurgen. “Three normative models of democracy”, Constellations, vol 1, no. 1, 1994.
7. Hiday, V.A. “Judicial decisions in civil commitment: facts, attitudes, and psychiatric recommendations”, Law and Society Review, 17, 517-29, 1983.
8. Litwack, T.R. “On the ethics of dangerousness assessments”, Law and Human Behavior, 17, 479-85, 1993.
9. Posner, Richard A. “Rational Choice, Behavioral Economics, and the Law”, STAN. L. REV. 1551, 1570-71, 1998.
10. Wood, E.M. Democracy Against Capitalism, Cambridge: Cambridge University Press, 1995.

 

 
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