By Venla Stang & Hannah Van Dijcke, international legal associates
Illustrations by Lucian French, designer
Independent judges are a nightmare for would-be dictators. They have the immense power to overturn the abusive actions of creeping authoritarian regimes by acquitting dissidents of bogus charges, holding regime officials accountable, or upholding free and fair elections.
Because of judges’ essential checking power, authoritarian regimes across the globe regularly attack them. At times, they do this very overtly, like, for instance, arbitrarily sacking thousands and arresting hundreds of judges, as in the case of Turkey after the failed 2016 coup attempt. Yet, more often than not, creeping authoritarian regimes use measures disguised as legitimate or reasonable that intimidate and harass judges or otherwise obstruct their work.
These disguised judicial attacks are particularly popular among “hybrid authoritarian” regimes. These are regimes that democracy and freedom indexes like V-Dem, the Economist, and Freedom House recognize have some elements of authoritarianism but are not fully authoritarian yet — largely because the elections that got them into or maintained in office were “competitive” enough that classifying them as authoritarian was inadequate. Thus, these hybrid authoritarian regimes, such as Hungary, Bolivia, Kenya, or India, benefit from the disguise of this “democratic” legitimacy.
We highlight three disguised measures authoritarian regimes globally use time and time again to attack the judiciary.
Changes to Judicial Tenure
One of the most efficient types of disguised judicial attacks is sudden changes to judicial tenure. Tactics such as forcing judges unfavorable to the regime into early retirement or stripping judges of guaranteed tenure enable a regime to shape a favorable judiciary under the guise of reasonable changes to judges’ appointments.
In 2012, for example, Hungary lowered judges’ retirement age by eight years through a new constitution to supposedly “standardize public-sector retirement” and “establish a more balanced age structure.” While seemingly legitimate, the measure forced nearly 300 judges, who were appointed by the previous regimes and were not afraid to rule against the current regime’s interest, into immediate retirement. Despite Hungary’s Constitutional Court annulling parts of the law as unconstitutional and the European Court of Justice finding the law incompatible with EU law, many judges could not reclaim their positions, and regime loyalists took over their seats.
In the other corner of the world, the Bolivian regime engaged in even more aggressive changes to judicial tenure than its Eastern European counterpart. A 2010 law stripped Bolivian judges of their tenure, causing 47% of ordinary Bolivian judges in 2022 to have temporary positions. While the change was adopted by law, it disguised an aggressive attack on judicial independence, as recognized by Principle 12 of the UN Basic Principles on the Independence of the Judiciary. Without guaranteed tenure, judges are incentivized to rule in favor of the regime that determines their income.
Judicial Budget Cuts
Another common strategy for attacking judges is to tighten their belts. Under the guise of financial responsibility and austerity measures, regimes often reduce the court’s operating budget or judges’ salaries or benefits so drastically that they are unable to properly exercise their checking function. Principle 7 of the UN Basic Principles on the Independence of the Judiciary recognizes that adequate resources are essential for the judiciary to perform properly.
The Bolivian regime, for instance, reduced judges’ salaries so much that the budget of the entire judicial branch is at an all-time low. It is less than 0.5% of the total national budget, which is much below the 2-6% that the UN Special Rapporteur on the Independence of Judges and Lawyers found to be a normal judicial budget. While there may be legitimate reasons for budget cuts, the drastic cuts in Bolivia have obstructed judges’ work.
In Sub-Saharan Africa, the Kenyan regime used a similar tactic. In 2018, the regime suspended judges’ medical insurance and, a year later, momentarily cut 26% of the judiciary’s operating budget, forcing it, for example, to operate without an Internet connection. While the regime disguised these cuts as necessary due to insufficient funds, the timing raised some eyebrows. The judicial budget cuts came right after President Uhuru Kenyatta vowed to “fix” the “crooked” judiciary, following the Supreme Court’s decision to nullify his electoral win.
Finally, regimes often target individual regime-critical judges using arbitrary disciplinary measures.
India regularly transfers regime-critical judges to smaller or less influential courts as a way of punishment or intimidation. The transfer of Delhi High Court Justice S Muralidhar in February 2020 and Chief Justice Sanjib Banerjee in November 2021 are prominent examples.
Both well-respected justices were transferred to smaller courts after — in Muralidhar’s case, mere hours after — rendering decisions against regime interests. The Delhi High Court Bar Association (DHCBA) expressed “shock and dismay” at the transfer of Justice Muralidhar, whom it considered to be one of its finest judges, and urged its members to abstain from work in protest. The Madras Bar Association condemned Justice Banerjee’s transfer asking it to be reconsidered, and 31 senior counsels vouched for Banerjee’s work, saying they were “unable to fathom the reasons for his sudden transfer.”
While Art. 222 of the Indian Constitution gives the regime the power to transfer judges, and the regime cites seemingly legitimate reasons — such as the need to exchange talent across the country — these transfers often, in fact, are disguised judicial attacks. From smaller or less influential courts, regime-critical judges cannot meaningfully exercise their checking power.
Disguised judicial attacks are essential in the dictators’ toolkit, especially in hybrid authoritarian regimes. They enable these regimes to remove or silence independent judges who threaten their repressive rule while keeping up some appearance of legitimacy or reasonableness.
These attacks are a blatant violation of the UN Basic Principles on the Independence of the Judiciary. According to Principle 2, the judiciary must be able to decide matters “without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter for any reason.”
HRF calls on the international community to strongly condemn disguised judicial attacks and to stand with judges who experience such attacks. The international community should recognize disguised judicial attacks for what they are: aggressive moves toward the judiciary to undermine judges’ ability to do their invaluable job of keeping authoritarian regimes in check.
Venla Stang and Hannah Van Dijcke are international legal associates at the Human Rights Foundation.