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Struggle to Develop Independent Courts in New Democracies
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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.
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