Building a Collaborative Model for Judicial Oversight

I. Prologue

The establishment of judicial commissions in almost every country is intended to advance judicial independence. Judicial independence is linked to accountability and oversight of judges. Accordingly, if oversight of judges is weakened, judicial independence will also be weakened. A decline in judicial independence will have adverse implications for the autonomy of the judiciary. In line with this proposition, current conditions reveal an antinomy concerning the jurisdiction for judicial oversight. This conflict points to a contradiction over the definition of “technical judicial matters”. Both the Judicial Commission and the Supreme Court tend to have conflicting interpretations of the boundaries of this jurisdiction.

The main cause of this situation is the absence of clear rules on oversight of technical judicial matters. By extension, this also concerns judges’ conduct. Differences in interpretation have led the Supreme Court to reject many of the Judicial Commission’s recommendations. From 2005 to 2025, 75 per cent of the Commission’s decisions reportedly could not be followed up on the grounds that they concerned technical judicial matters. This longstanding problem has yet to be resolved. The Judicial Commission and the Supreme Court have not developed a shared understanding of how technical judicial matters should be assessed.

Nor has a strategy been established to protect judges’ independence in their rulings. This reveals a contradiction that has produced competing positions. Put plainly, the two state institutions have yet to achieve proportional alignment.

There is no denying that if judges’ rulings were made subject to oversight by the Judicial Commission, this would be regarded as interference with judicial independence. On the other hand, it is also untenable for the definition of technical judicial matters to be treated as the exclusive domain of the Supreme Court.

2. Discussion

Initially, the idea of external oversight by the Judicial Commission was intended to support the Supreme Court’s internal oversight. In practice, however, the Supreme Court and the Judicial Commission have not been aligned in their oversight of judges. A systems-based and collaborative approach is therefore needed to build an ideal model of oversight that is proportionate and effective.

First, there is the substance of Law No. 48 of 2009 on Judicial Power. A common ground needs to be found on the authority to oversee judges in order to avoid jurisdictional conflict between the Supreme Court and the Judicial Commission. Articles 39 and 40 of the Law on Judicial Power do not mention technical judicial matters in connection with oversight by either the Supreme Court or the Judicial Commission. In other words, oversight jurisdiction is not based on the distinction of technical judicial matters. The provisions instead establish that the Supreme Court conducts internal oversight of judges’ conduct, while the Judicial Commission conducts external oversight of that conduct. Because of this division of oversight functions, the Supreme Court considers itself under no absolute obligation to follow up on the Commission’s ethical rulings. Moreover, the Judicial Commission Law describes the Commission’s decisions as proposals or recommendations. Its decisions may be legally valid, but can be said to lack legitimacy.

Ideally, these provisions should be revised to clarify oversight jurisdiction. However, progressive legal theory holds that the application of law should not be confined to the text of regulations. Jurisdictional conflict over oversight of judges should not be resolved by treating regulations as immutable. Laws should be implemented in accordance with the purposes for which they were enacted. The Supreme Court and the Judicial Commission should therefore reconsider how oversight of judges is conducted, interpreting existing regulations creatively rather than waiting for legislative amendments. Such an interpretation of technical judicial matters requires corrective steps, in the form of remedies or improvements.

In essence, technical judicial matters are governed by the applicable legal framework: Chapter IX on Judicial Power of the 1945 Constitution, the Law on Judicial Power and the Judicial Commission Law. Oversight jurisdiction can therefore be negotiated between the Supreme Court and the Judicial Commission. The decisive consideration should be public benefit as reflected in the Constitution, namely the realisation of an independent judiciary. To ensure that the courts uphold law and justice, judicial independence must be secured alongside accountability through oversight. Achieving both principles requires the Supreme Court and the Judicial Commission to share a common approach to developing a more progressive and, crucially, collaborative system and mechanism for overseeing judges.

Substantively, oversight of judges cannot be separated from independence. Judicial independence is an obligation in a state governed by the rule of law. Yet it can never be achieved in the absence of oversight. Since oversight of judges helps ensure judicial independence, such oversight is itself essential. On this basis, the division of oversight functions cannot be maintained and should instead be unified. This unified approach would correct the dual-track oversight system, whose disharmony and lack of direction have undermined its effectiveness.

Second, there is the question of structure. Since the division of oversight cannot be maintained, it should be reformed through unified oversight to achieve integration. This integration offers a middle ground for addressing jurisdictional disputes. It embodies “unity in diversity”, enabling more effective, coordinated oversight of judges. The proposed unified model would establish a joint body between the Judicial Commission and the Supreme Court to assess and oversee judges, to be called the Integrated Judicial Oversight Agency (BPHT). It would be led by the Supreme Court’s Chief of the Oversight Chamber—or at least the head of its Supervisory Agency—and the head of the Judicial Commission’s Judicial Monitoring Bureau, supported by suitably qualified experts. The two sides would act as quality assurance officers in the integrated oversight process. The first step would be to determine whether an alleged breach falls under the Code of Ethics and Code of Conduct for Judges (KEPPH), or is strictly a matter of procedural law. A matter that is purely procedural would not be taken further.

If a breach concerns the KEPPH, it would proceed to a plenary hearing, but only for minor and moderate violations. Serious violations would continue to be handled by the Judicial Honour Council. However, if a procedural irregularity indicates a criminal offence, such as transactional practices, the case would be referred to law enforcement authorities. This would provide a means of pursuing legal action against transactional practices.

The Judicial Commission’s commissioners would serve as the BPHT’s oversight controllers. This role would neither diminish the Supreme Court’s function of developing judges nor interfere with its oversight of “technical judicial matters”, as set out in the draft Judges’ Office Bill. Rather, it would reflect the principle of “shared responsibility” in the administration of the judiciary. By way of comparison, under Article 63 of the Maritime Law, the Maritime Security Agency—which is not itself a law enforcement body—coordinates maritime law enforcement. Its authority is exercised in an integrated and coordinated manner under a unified command and control structure.

Third, there is the question of culture. As Satjipto Rahardjo observed, culture is the cultural component in the operation of the legal system as a process. Together with the structural and substantive components, it forms a single whole in which the elements interact to create what is known as the legal system. Culture is therefore decisive in empowering the bureaucracy and reforming the law. Von Savigny similarly argued that culture helps determine the character of law in society. His reasoning was that individuals who share a background and framework of thought will also share goals and aspirations within a community. Culture can foster social solidarity, harmonising elements of the bureaucracy and ultimately influencing how the legal system works. Harmonious enforcement of ethical standards can emerge from mutual sympathy and empathy, reflected in solidarity among bureaucratic bodies. However well structures are designed to implement the law, and however good the substantive rules may be, implementation will not be effective without cultural support.

Alongside a systems-based approach, collaborative governance should also be strengthened. Chris Ansell and Alison Gash (2007) describe collaborative governance as a new strategy for public administration that brings diverse policy stakeholders together in a shared forum to reach consensus. Collaboration is a process in which parties recognise their limitations in understanding a problem and explore their differences in search of a solution (Thomas Christian Fendt, 2010). It also involves synergy: relationships between two or more parties that use communication to build cooperation and trust.

A synergistic outcome is one whose quality exceeds the combined value of what each group member could produce individually. The need to address problems that cannot be solved by one organisation alone is directly relevant to the current dual oversight dispute between the Judicial Commission and the Supreme Court. Collaboration is therefore relevant and significant to the BPHT. Bureaucratic empowerment should also be pursued. This goes hand in hand with strengthening the oversight function through the proposed joint body. An integrated structure would foster a more harmonious and synergistic environment.

3. Epilogue

Proportional alignment between the Supreme Court and the Judicial Commission is key to reconciling their differing positions. A collaborative oversight system and mechanism should therefore be developed. As its name suggests, the Integrated Judicial Oversight Agency would bring together the oversight duties and functions of the Judicial Commission and the Supreme Court. It is expected to make oversight more integrated, systematic and comprehensive. The agency would also support the evaluation of judges’ competence, compliance with standards and professional development. Ultimately, oversight of judges would become more measured and focused.