Introduction
New democracies, countries in transition towards democratic systems and hybrid regimesāintended as those regimes preceded by a period of authoritarian rule and then followed by tolerance and partial liberalization (Morlino and Palombella 2010)āshare a common and fundamental issue, which is the number of restrictions applied to judicial independence. This chapter will examine this central point in depth, in particular proposing an interpretive framework to explain whether external pressure from international actors, in particular in this case the EU in its role of international normative actor promoting rule of law (Manners 2002), is supporting the struggle towards the establishment of minimal guarantees of judicial independence, or whether external pressure might have a different impact.
This chapter will engage in the necessary explanation of two central variables: judicial independence and judicial efficiency. The task of the following paragraph, in particular, comprises explaining why judicial independence is considered a fundamental achievement in liberal democracies, what the minimal conditions of judicial independence are and then explaining the other side of the democratic principle of accountability: efficiency, which we will define as the managerial dimension.
The purpose of the first part of the chapter is to provide a descriptive analysis of judicial guarantees of independence, starting from the definition of rule of law and stressing the pivotal aspect of judicial independence. With this in mind, the chapter will then disclose the multidimensionality of the mechanisms that guarantee the judiciary to be independent and accountable at the same time (Russell and OāBrien 2001; see also Piana 2009, 2010), thus exemplifying what is promoted when we refer to the external model of judicial governance and what we expect as a result of this process. The aforementioned analysis will provide a first step towards the operationalization of the dependent variable that is the centre of this book on the quality of democracy in two transitioning countries of the MENA region: Morocco and Jordan.
Judicial Independence in Western Liberal Democracies
The quest for democracy has always been linked to the necessity of controlling power. The search for a mechanism to bind political power found practical terms in Europe in the aftermath of World War II. After the fall of authoritarianisms, reconstruction passed also through the institutional design of a stricter control on the work of governments. This notwithstanding, the need to limit power comes from far away in history. In this sense, the transition to modernism was marked by the steps men took towards the non-arbitrary use of political power and the shift from transcendent authority to rules made by men. Indeed, to limit the discretionary power of rulers, a new system of governance placed at its centre the idea of impersonal ruling and the division of powers into three branchesāthe executive, legislative and judiciaryāthat was based on the certainty of independence and at the same time of inter-institutional accountabilities. This kind of accountability has also been described as āhorizontalā (Schedler et al. 1999), in the sense that actors controlling each other are usually politically equal (Morlino 2010). In practical terms, this entails: the monitoring that non-majoritarian agencies do to the work of the political branch, and checks made by the courts, central banks and anti-corruption authorities. The establishment of a system of checks to the rulings of political institutions in modern democracies is understood to be fundamental for the protection of basic rights.
In order to understand the point of departure of this book, it is necessary to outline that the establishment of checks and balances and the control exercised on power are a fundamental objective of international actors committed to supporting democracy in hybrid countries. As Tamanaha rightly posited, democratic rule of law stands for a concept of respect for fundamental rights and limited state power (Tamanaha 2004: 114) and this is precisely what is envisaged in programmes such as USAID and EU actions towards hybrid countries.
It is this commitment of international actors such as the EU to the support of rule of law in hybrid countries which prompted the study conducted in this book to analyse the actions taken by countries of the southern neighbourhood of the EU and to develop an explanation on the possible impact that EU pressure for judicial reform might have. In accordance with this compelling issue, this study focuses on a procedural definition of rule of law (Trebilcock and Daniels 2008) and on the specific aspect of judicial governance.
The Relation Between Rule of Law and Judicial Independence
In general terms, the concept of rule of law has at its heart the quest of keeping power accountable to the written law, or the constitution, as the term constitutionalism is best fitted for this purpose. Constitutionalism in fact better expresses the idea of holding accountable the exercise of any power, including judicial power (Piana 2009).
As Linz and Stepan argue, consolidated democracies must have in place a number of arenas that interact with each other in order to reinforce democratic institutions, and rule of law is referred to in their discourse precisely as the way in which government and state must respect and uphold the law (Linz and Stepan 1996). Therefore, we maintain that the existence of a system of constraints to the action of the government is defined by the ideal of rule of law, but this is not a complete definition. The term rule of law is open to a number of interpretations. Even if there is no single accepted definition, the concept to which we refer, in the most general way, describes the equal application of laws, respect for political and civil liberties and the subordination of political power (Carothers 2006). Rule of law in fact is considered to be the adequacy of political institutions to prevent the law from turning itself into a tool of domination (Palombella 2010). In this respect, the spirit of constitutionalism that is embedded in the concept of rule of law entails a commitment to self-binding procedures. It follows that the establishment of rule of law requires a hierarchy of laws interpreted by an independent judicial system (Linz and Stepan 1996).
In this brief, and possibly not complete, excursus on the notion of rule of law and self-binding institutions, our aim is to shed light on the critical position that the judicial branch occupies. The judiciary, in fact, by putting into action the provision of the law (Piana and Dallara 2010) keeps public officials accountable and is a key point for the establishment of the rule of law, but this is not all. As a primary agency of legal accountability, the judiciary is able to exercise its functions in a situation of independence from undue government pressure, but at the same time, in performing its function of adjudication, the judiciary must also be held accountable. As Cappelletti argues, there is a āhuman problem that is shared by modern countries [ā¦] power signifies not only legal authority b...