Tag Archives: appointment

Tackling Corruption While Preserving Judicial Independence: Lessons from India’s Supreme Court 

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In India, Justices of the Supreme Court and judges of India’s 25 regional High Courts are appointed through a process known as the Collegium System. Although the Constitution vests the appointment power in the President of India, the President may only appoint a Supreme Court or High Court nominee recommended by a body called the Collegium, which consists of the Chief Justice, the four other senior-most Supreme Court Justices, and, in the case of High Court nominees, the senior-most judge on the High Court of the prospective appointee.

This system, which developed over the 1980s and 1990s as part of a decades-long tug-of-war between the branches of government, is controversial. Some critics have argued that the Collegium, which operates largely as a black box, leads to the selection of judges based on cronyism and quid pro quos, regardless of a nominee’s merit or scruples. Notably, critics contend, the Collegium System allows for the appointment of corrupt judges because the secrecy of the Collegium’s deliberations prevents accusations of impropriety against those nominees from becoming public. In buttressing this claim, critics point to instances of High Court judges who have been credibly accused of corruption, including one who was formally charged at the end of last year for taking a bribe in exchange for a favorable verdict. Critics also contend that the Collegium System exacerbates judicial corruption through another, more indirect channel: The Collegium’s slow pace has left hundreds of High Court seats vacant, which exacerbates the Indian court system’s extreme case backlog. That backlog, in turn, encourages petty bribery, as many frustrated litigants would prefer to bribe a judge or court official to jump the line or get a case dismissed rather than wait years for a final resolution. Even former Chief Justice V.N. Khare acknowledged that bribes for bail are rampant in the lower courts given the delays litigants may face down the line.

In response to these concerns, the Indian Parliament, led by Prime Minister Narendra Modi, voted overwhelmingly in 2014 to amend the Indian Constitution to replace the Collegium with a National Judicial Appointments Commission (NJAC) composed of representatives from all three branches. But before the law could go into effect, the Supreme Court ruled it an unconstitutional threat to judicial independence. While calls for reform temporarily abated, just last December a member of Modi’s cabinet expressed support for reintroducing the NJAC amendment to replace the Collegium System.

Any such attempt, however, would be misguided. Anti-Collegium reforms like the NJAC would undermine India’s hard-won judicial independence, and the corruption problem these reforms would purport to solve has been greatly exaggerated.

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The Case for Abolishing Police Commissioners’ Extendable Terms in Israel

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The investigations into corruption allegations against Israel’s Prime Minister Benjamin Netanyahu have received massive attention from the media in Israel and around the world ever since they began in late 2016. In one of the most recent developments, last September Israel’s Minister of Public Security, Gilad Erdan, officially announced his decision not to extend the three-year term of the current head of the Israeli Police, Commissioner Roni Alsheich, by an additional year. Therefore, Alsheich is expected to complete his tenure at the end of this year. Erdan ascribed his decision not to extend Alsheich’s tenure to “differences of opinion and divergent approaches on various issues, some of them substantial and weighty, and which had a significant impact on the public’s trust in the police.” Opposition members and commentators, however, claimed that this decision was driven by the fact that Alsheich has been (or has been perceived as) leading the investigations into Prime Minister Netanyahu. According to the critics, Erdan, a member of Netanyahu’s Likud Party, was acting to please influential senior members of the Likud, as well as Netanyahu himself – an allegation that Erdan denied.

The facts of this particular case are murky. There is no solid evidence to show that Erdan’s decision not to extend Alsheich’s term was related to the latter’s involvement in the Prime Minister’s corruption probe. (In fact, even critics of Erdan’s decision do not seem to claim that Alsheich’s commissionership was flawless.) Nevertheless, this incident highlights a larger institutional flaw in Israel’s current practice of appointing police commissioners for three years with the option for extension.

Israeli law does not actually specify a fixed length for a police commissioner’s term, nor does it mention anything about the potential for term extension. In fact, Israel’s Police Ordinance says only that the commissioner is to be appointed by the government, per the recommendation of the Minister of Public Security. However, over the years it has become an accepted practice (though not without exceptions) that the police commissioner is appointed for a term of three years, and toward the conclusion of that term, the Minister of Public Security decides whether to recommend that the government extend the commissioner’s term by approximately one additional year. This practice should be abolished. Instead, the law should be amended such that the commissioner would be appointed for a fixed, non-extendable term (except in certain emergency situations) – a proposal that has been advocated by commentators and some members of the Knesset (Israel’s parliament), but so far has gone nowhere.

There are three strong arguments, from the perspective of anticorruption policy, for giving the police commissioner a fixed non-extendable term (at this point, regardless of its exact duration): Continue reading →

The Urgent Need for Innovation in India’s Public-Sector Appointments Process

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A public sector job is one of the most prized forms of employment in India, for a variety of reasons including prestige, attractive entry-level pay, a multitude of employment benefits, and unparalleled job security. The selection process is governed by a constitutionally-mandated scheme involving competitive examinations, and the competition for places is maddeningly intense, with millions of aspirants vying for a handful of vacancies; many candidates spend years “waiting” to clear the exam. The competitive examination system for public service appointments dates back to a 19th-century effort by the British Imperial Civil Service to crack down on corruption and patronage; after independence, India choses to retain this selection method, for similar anticorruption reasons. But it hasn’t worked: despite “merit-based” appointments, the Indian public service has remained plagued with corruption and bribery—and all too often, as in the recent  multi-billion-dollar scams that hit Indian public-sector banks, public officials are at the heart of criminal conspiracies.

Common explanations for the persistence of corruption in the Indian civil service are the relatively low pay of government jobs (notwithstanding the benefits and perks), as well as the excessive size of India’s public sector overall. Both points are valid, but we also need to consider problems with the selection process itself. Worryingly, research has suggested that the Indian public sector attracts corrupt candidates (see here and here), which contributes to the persistence of a culture of corruption in the civil service. Two reforms to the current selection system could potentially help reduce this problem: Continue reading →

Guest Post: Fishing for the Right ACA Heads, and Keeping Them Safe

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Sofie Arjon Schütte, Senior Advisor at the U4 Anti-Corruption Resource Centre, contributes the following guest post, adapted from her recent U4 research paper, “The fish’s head: appointment and removal procedures for anti-corruption agency leadership”:

There has been much discussion on this blog (see here, here, and here) about the requirements for an effective, independent anticorruption agency (ACA). A number of factors are important, including (as emphasized in the Jakarta Statement) the ACA’s mandate, permanence, budget security, autonomy over financial and human resources, and internal and external accountability mechanisms, to name a few. But among the many important factors, the procedures for appointment and removal are particularly critical. As the saying goes, “a fish rots from the head down”: when the leadership of an organization is unethical or ineffective, these failings infect the entire organization. Undue external interference with an ACA is likely to target the head, and a co-opted or corrupted ACA head can do serious damage to the effectiveness and reputation of the ACA.

My research on the appointment and removal procedures for heads of 46 ACAs around the world has highlighted some of the important factors that can promote or undermine effective, ethical, and independent ACA leadership. Given different contexts, no specific set of procedures for appointments and removals can be considered ideal for all environments. Nevertheless, some general guidelines are possible: Continue reading →