UNDP-促进可持续发展的包容性决策：通过可持续发展目标（英）-2021-24正式版.ppt

United Nations Development ProgrammeJune 2021Measuring Peace,Justiceand InclusionUNDP Oslo Governance Centre SDG 16 Policy BriefAdvancing Inclusive Decision-Making forSustainable Development:Representation inthe Judiciary through SDG 16.7.1cThis brief focuses on how to promote the inclusion and participation of underrepresented groups in courtsthrough SDG 16.7.1c,which measures representation in the judiciary.Data on judicial personnel will helpto better understand the composition of the judiciary and can inform strategies to promote diversity andinclusion in the justice system.A representative judiciary is an essential step in both ensuring a moreeffective and responsive justice system and increasing access to justice for all,particularly populationgroups who are marginalized and disadvantaged.The challenges of ensuring representative decision-making whether for women,racial or ethnic minorities,indigenous peoples,or persons with disabilities is a universal challenge across all contexts,and with better data countries can identify entry points tobetter respond to increasing calls for justice and inclusion.Representation in the judiciaryaffairs”/”public life”in the context of thejudiciary(see Box 1).For instance,theCommittee on the Elimination of Discriminationagainst Women specifies that,“The political andpublic life of a country is a broad concept.Itrefers to the exercise of political power,inparticular the exercise of legislative,judicial,executive and administrative powers.”2Similarly,the OSCE High Commissioner onNational Minorities urges States to ensure thatthe composition of courts,tribunals,prosecutionoffices,law-enforcement agencies,correctionalservices,enforcement agencies and humanUnderstanding the composition of the judiciary who is represented and more significantly whois not is critical to promoting inclusive andparticipatory governance systems.Recognizingthat representation in the judiciary is vital forinclusive and sustainable development,indicator16.7.1c was adopted as part of the monitoringframework of the 2030 Agenda for SustainableDevelopment,and Member States areencouraged to report on it.1Various international normative frameworkspromote the right to participate in“public1UNDP Oslo Governance Centrerights institutions reflect the diversity of thepopulation at all levels.”3considered,and diminishes the possibility thatonly one perspective dominates.10 Thus,judgesbelonging to historically underrepresentedgroups build on their unique perspectives andlife experiences shaped by their race,gender,sexual orientation,religion,or othercharacteristics.Even more importantly,they canshare this knowledge with other members of thejudiciary,thereby contributing to the realizationof both individual and structural impartiality.11However,unlike in the executive or legislativebranches,promoting representation in thejudiciary,particularly among judges,has onlyrecently gained more traction.4 It is increasinglyrecognized that there are many structuralfactors that prevent different population groupsfrom being represented in the judiciary,whichcan significantly impact judicial outcomes.Ajudiciary that is not reflective of the population,especiallyexcludedandmarginalizedpopulations groups,is less likely to be able toeffectively protect and promote fundamentalvalues of“social justice”and“equality”.5The composition of the judiciary often reflectswhere decision-making power lies in a society.Promoting change in the socio-economicdemographics of who is represented in thejudiciary so that it reflects the nationalpopulation can be one way to spur broaderjustice sector reform and uphold legal andjudicial principles.For instance,according to theBangalore Principles of Judicial Conduct,theprinciple of equality obliges a judge“to be awareof,and understand,diversity in society anddifferences arising from various sources,including race,colour,sex,religion,nationalorigin,disability,age”,etc.6 The immense valueof diversity on the bench was emphasized in2020 by the United Nations Human RightsCouncil,which encourages“promoting diversityin the composition of the members of thejudiciary by actively promoting the balancedrepresentation of women,men personsbelonging to minorities and other disadvantagedgroups”.7 As for the impartiality principle,it restson the idea that a judge shall perform his or herjudicial duties without favour,bias,or prejudice.8However,this principle shall not be seen as“some stance above the fray,but thecharacteristics of judgement made by taking intoaccount the perspective of others”.9 Addingjudges with a variety of backgrounds andexperiences in the judiciary brings diverseperspectives into adjudication processes,allowstraditionally overlooked interests to be2UNDP Oslo Governance CentreBox 1.Key international standards on the right to participate in public affairs and equality in thejudiciaryUniversal Declaration of Human Rights(Art.2)-“Everyone has the right to equal access to public service in hiscountry.”Convention on the Elimination of All Forms of Discrimination against Women(Art.7)“State Parties shall takeall appropriate measures to eliminate discrimination against women in the political and public life of thecountry.”UN Convention on the Rights of Persons with Disabilities(Art.29)“State parties shall promote actively anenvironment in which persons with disabilities can effectively and fully participate in the conduct of publicaffairs,without discrimination and on an equal basis with others,and encourage their participation in publicaffairs.”International Convention on the Elimination of All Forms of Racial Discrimination(Art.5)“State partiesundertake to guarantee the right of everyone,without distinction as to race,color,or national or ethnic origin,to equality before the law,notably in the enjoyment of (c)Political rights,in particular the right to take partin the Government as well as in the conduct of public affairs at any level and to have equal access to publicservice.”Declaration on the Rights of Persons Belonging to National or Ethnic,Religious and Linguistic Minorities(Art.2)“Persons belonging to minorities have the right to participate effectively in cultural,religious,social,economicand public life.”(Art.4)“States shall take measures to ensure that persons belonging to minorities mayexercise fully and effectively all their human rights and fundamental freedoms without any discrimination andin full equality before the law.”The Framework Convention for the Protection of National Minorities(Art.15)“The Parties shall create theconditions necessary for the effective participation of persons belonging to national minorities in cultural,socialand economic life and in public affairs,in particular those affecting them.”Basic Principles on the Independent of Judiciary(Principle 10)“In the selection of judges,there shall be nodiscrimination against a person on the grounds of race,color,sex,religion,political or other opinion,national orsocial origin,property,birth or status”.Bangalore Principles of Judicial Conduct(Para.5.1)“A judge shall be aware of,and understand,diversity insociety and differences arising from various sources,including but not limited to race,color,sex,religion,national origin,caste,disability,age,marital status,sexual orientation,social and economic status and other likecauses(irrelevant grounds).”This argument is backed up by a growing body ofresearch that analyses the influence of judgesdemographics on judicial decision-making.Evidence suggests that a judges individualcharacteristics may have an effect both onindividual decision-making(“individual effect”)and also on the substantive interests of thegroup they represent(active/substantialrepresentation),since they are better positionedto understand and take seriously the views heldwithin their own community.For instance,in harassment or gender-basedviolence cases,female judges may draw fromtheir own experience of harassment anddiscrimination,among other factors to betterunderstand the context;this can lead to a moreinformed decision affecting women specifically.Studies have also found that female judges aremore likely than their male counterparts to rulein favour of plaintiffs in sexual harassment andemployment discrimination cases.12 The judgesbackground may also impact the behaviour ofother judges and thereby create a“panel3UNDP Oslo Governance Centreeffect”.13 For example,some studies show thatthe random assignment of minority judges to athree-judge panel in affirmative action casesenhances the quality of judicial deliberations,14increasing the chances for approving theaffirmative action(see Box 2).concerns are better understood(symbolicrepresentation).Inclusion of various underrepresented groups inthe courts also reaps important benefits for theaccessibility of justice by signalling that justiceis not the prerogative of one particular group,17which is particularly important in conflict-affected environments.18 The presence of judgesfrom various backgrounds helps to improve thecourtroom experience for litigants and lawyersand encourages the various underrepresentedgroups to seek and access justice services.Forexample,research has shown that inproceedings chaired by a female judge,judge atthe International Criminal Tribunal for theFormer Yugoslavia,defence lawyers have beenmore respectful when questioning femalewitnesses,resulting in female witnessesspeaking more freely.19 Similarly,female judgesin Rwandas Gacaca courts encouraged womenDiversity on the bench not only benefits thequality of judicial adjudication,but it is alsofundamental for sustaining public trust in ajudicial system.According to the EuropeanCourt of Human Rights,courts not only need tobe impartial,they“must also be seen tobe impartial”.15 The evidence suggests that lackof diversity in the judiciary may significantlyimpact the publics confidence and trust in theadministration of justice and negatively affectthe overall legitimacy of the judiciary.16 So,withincreased diversity on the bench,the society orvarious groups may feel that they arerepresented more fairly and their uniqueBox 2.Studies on the benefits of building a representative judiciary The probability of a female judge deciding in favor of the party alleging sex discrimination is about 10%higher than it is for the male judge in the United States.A female presence on a panel increases thechances of voting in favor of plaintiffs alleging discrimination.As compared to male judges,female judges with prior experience in womens rights had a higher averagegrant rate for asylum seekers in Canada,particularly in cases involving female claimants and in relationto gender-based persecution.Adding a black judge to the all-non-black three-judge panel of the Court of Appeals increased the chanceof voting in favor of affirmative action in the United States.Diversity in a panel also improved the qualityof the panels deliberations.Women judges were found more likely to rule statutes unconstitutional if they violate the equalprotection,due process,or freedom of association rights of people who identify as LGBTQ in the UnitedStates.Participation of women judges in the Gacaca courts of Rwanda has assisted female victims to overcomeresistance and report gender-based violence cases.The Nari Adalats in India were established as grassroots mechanisms to address increasing violenceagainst women and respond to womens reluctance to go to the formal judicial mechanism.With a panelof female judges,it provides women with an accessible alternative dispute resolution method thatcreates a safe and respectful environment for women.Sources:J.P.Kastellec,Racial Diversity and Judicial Influence on Appellate Courts,(2012);C.Boyd,L.Epstein,A.Martin,Untangling the Causal Effects of Sex on Judging,(2010);R.Sean,Do Women Refugee Judges Really Make a Difference?,(2011);F.O.Smith,Gendered Justice:Do Male and Female Judges Rule Differently on Questions of Gay Rights?,(2005);UNDP,UNWOMEN,UNICEF,Informal justice systems charting a course for human rights-based engagement,(2013);TheFund for Global Human Rights,Justice for Women,by Women:How Women-Run Courts are Changing the Game in India,(2018);Namita Raje,Nari Adalat-Case Study,(2017).4UNDP Oslo Governance Centreto report gender-based violence,which isfrequently not reported because of the stigmaassociated with being a victim(see Box 2).20power to interpret and uphold the law to protectthe populations fundamental rights,livelihoods,and well-being.By interpreting constitutional orlegal provisions,judges play a crucial role inprotecting the rights of the most vulnerablegroups that are easily susceptible todiscrimination or marginalization.However,judges also considerably impact the law-makingprocess in a manner that promotes theenjoyment of fundamental rights in the society.Considering the time judges serve on the bench,the impact judicial decisions have may last forgenerations(see Box 3).23Furthermore,it is essential to considerintersectionality when discussing representationin the judiciary.21 Marginalization of specificgroups can be cumulative,aggregating differentfactors of exclusion.Alongside sex and gender,for example,it is important to also considerfactors such as race,ethnicity,religion anddisability status.For example,while Blackwomen have been shortlisted for the USSupreme Court,they have not yet beenappointed to the bench.22Another position playing a decision-making rolein the judiciary is the registrar(also called a“clerk”,“judicial officer”,“Rechtspfleger”,“secretario de estudio y cuenta”).A registrarassists by performing administrative duties,preparing court files,conducting legal research,and drafting and executing decisions.Theposition of a registrar is often a first step towardspursuing a legal career.While the duties of aregistrar vary from jurisdiction to jurisdiction,alljudicial systems employ these professionals.Insome jurisdictions they can perform judicial orquasi-judicial functions themselves,includingmaking decisions on interlocutory applications,on damage assessments,and on applications forthe entry of default judgments.Thus,dependingon the extent of these duties,the registrar mayhave a far-reaching impact on a judicial decision,as judges heavily rely on their knowledge,expertise,and recommendations.For instance,law clerks in the Supreme Courts in theNetherlands prepare memos for judges thatsummarize the case facts and containrecommendations.24 Registrars can also serve asliaisons or ambassadors to the other chambersEmploying underrepresented groups in thejudiciary does not automatically eliminatediscriminatory practices and guarantee equalparticipation in judicial decision-making.However,increasing diversity among judges andregistrars is a first key step towards promotingdiversity and inclusion in the court system andincreasing access to justice for the mostdisadvantaged groups.Thus,a more diverse and representativejudiciary may:Improve the quality of judicial decision-making