Viewing judicial independence and accountability through the "lens" of performance measurement and management

Abstract

This article is a review of the European Network of Councils for the Judiciary's (ENCJ) framework and vision of the independence, accountability, and transparency of the judiciaries in member states of the European Union. Its purpose is to aid ENCJ in the further development of its indicators of judicial independence and accountability. The focus of the article is on performance measurement and management (PMM) as seen, depending on one's views, either as an instrument for strengthening judicial independence or, alternatively, an instrument for reigning in the power of the judiciary and threatening its independence. The article begins with a general discussion of judicial independence, accountability, and transparency as seen through the "lens" of PMM. It continues with a critical review and assessment of the conceptual framework of the ENCJ's 22 indicators and 64 sub-indicators of judicial independence and accountability and identifies several shortcomings that decrease the utility of the framework. It urges a rethinking of the conceptual framework and proposes an alternative model - an input/output/outcome "logic model" --more amenable to understanding and improving indicators of judicial independence and accountability. It makes four recommendations aimed at a better alignment of ENCJ's framework of indicators with principles and practices of modern PMM. The article concludes with a warning about troubling developments at a higher level of governance and politics that some see as a retreat from democracy and the rule of law in Europe and in many other parts of the world, one that poses an existential threat to the judiciary as a coequal partner in government.