Law, Power and Perception: Broadening the Debate on Judicial Independence

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When encountering claims about Armenia’s judiciary lacking independence, you’re unlikely to be surprised or question such statements. The notion that Armenia’s judiciary is corrupt, lacks independence, and is distrusted by the public is widely accepted as fact. But how accurate are these assumptions? Expert opinions, personal experiences and beliefs all provide valuable insights, but they don’t constitute scientific evidence. Judicial independence is both a concept and social practice that can be studied scientifically. Only through rigorous research can we gain a comprehensive understanding on a question that has plagued the Armenian state for decades. To our knowledge, no empirical study of this kind has yet been undertaken. 

This article argues that judicial independence in Armenia deserves scientific inquiry, as empirical research could challenge prevailing assumptions and attitudes within the broader discourse. The rationale is straightforward: selective criticisms of the judiciary without systematic reference points risk undermining public perception of state legitimacy and authority. Caution is warranted when anyone—regardless of rank or occupation—publicly declares that Armenia’s judiciary lacks independence. Furthermore, the judiciary encompasses more than just independence—its political context, governance effectiveness, and evidence-based lawmaking are equally important.  

Readers might assume I’m defending Armenia’s judicial system against allegedly “unsubstantiated” attacks. Not at all. I don’t even know if the judiciary wants scientific scrutiny, given its silence in response to ongoing criticism. My interest lies elsewhere: to offer readers a specialist’s perspective on a debate that has become politicized and disconnected from relevant scholarship.  

Offering a new perspective requires providing context on the law and debate surrounding the issue at stake. I will then examine scholarship that defines and measures judicial independence, showing how the debate in Armenia could benefit from adopting a more nuanced, informed and ultimately more mature approach. 

Context on Law and Debate  

Law school textbooks describe judicial independence as a feature of political culture, primarily in liberal democracies, where powerful actors do not inappropriately interfere with the workings of the judiciary. These actors include the executive and legislative branches, media, private entities, litigants, non-governmental organizations, and individuals who influence public opinion. The list is not exhaustive (see The Bangalore Principles of Judicial Conduct,  OHCHR Basic Principles on the Independence of the Judiciary or ECHR Factsheet on the independence of the judicial system). 

Judicial independence must also be protected from public opinion pressure and sometimes even from legal constraints. These Montesquieuian and Lockean principles of branch separation and decisional independence were incorporated into Armenia’s Constitution, the Constitutional Law on Judicial Code, and the Constitutional Law on Constitutional Court. They establish separation of powers (Article 4 C.), judicial independence (Article 162 C., 164 C., 173 C., Article 7 J.), lifetime tenure of judges (Article 56 J.), procedures for judicial appointments (Article 165 C., 166 C.), social and economic incentives for impartiality (Article 164 C., 57-59 J.) and other relevant safeguards. 

However, behind these smooth-sounding textbook definitions and legal provisions lies a reality that is much more complex. In this reality, Constitutional and other legal guarantees serve merely as stepping stones. Despite numerous legal reforms (see, for example, The Strategy of Judicial and Legal Reforms for 2022-2026), the shadow of corrupt judiciary has haunted Armenia’s political establishment since independence. 

This issue became particularly relevant after the 2018 Velvet Revolution, as “the low level of trust in the judiciary was one of the reasons behind the events of 2018.” Critics argue that the post-revolution government’s failure to implement comprehensive vetting of judges represented a missed opportunity to address structural problems in Armenia’s judiciary, including its ties with unelected pre-revolutionary elites. 

Various domestic and international reports have documented these structural problems, including lengthy judicial reviews, lack of resources, issues with the justice system, and excessive workload. 

Beyond these structural issues and vetting debates, the judiciary became embroiled in heated political controversy when in 2019 Prime Minister Nikol Pashinyan used Facebook to call on citizens to block courthouses nationwide after a Yerevan court released former President Robert Kocharyan from pre-trial detention. Anti-corruption courts have, in recent years, also drawn considerable attention from both the media and political circles as the current government intensifies efforts to enforce legislation on confiscating property of illicit origin.  

Given the limits of this forum, no comprehensive account can be provided on all events surrounding Armenia’s judicial system. Nevertheless, even from this general overview, a clear tendency emerges. Public discourse on the judiciary focuses primarily on cases involving high-profile politicians, and redistribution of wealth of illicit origin . While these cases test judicial independence most visibly—when courts confront raw power—they probably represent less than 2-3% of the courts’ overall docket. Meanwhile reports and opinion pieces by various actors typically focus on specific legal provisions or aspects of judicial independence. Without questioning the validity of these case-based claims, we should note that the benchmark for these assessments and the extension of their findings to the entire system is often taken for granted. In simpler terms, if the judiciary fails to guarantee a fair trial in two instances out of 30, these remain isolated cases. Though illegal and requiring correction, they cannot justify claims that the judicial system has failed in its core function of ensuring fair trials. 

It’s important to clarify that this reflection on judicial independence goes beyond “telephone justice” or deep-rooted corruption where rulings favor the highest bidder. If research were to reveal such practices as widespread, the issue would not be the extent of judicial independence, but whether a judicial system exists at all. Such a scenario seems unlikely in Armenia, as the increasing caseload suggests growing public trust in the judiciary.  

Judicial Independence 

Contrary to conventional textbook assertions, judicial independence exists on a continuum rather than in absolute terms. Across the continuum, the judiciary may at times exhibit stronger independence, while at other times its independence may be undermined. As Tom Clark explains “…the question is how much political pressure is brought to bear on the judiciary and how does the judiciary respond to that pressure.” In democratic systems, the political appointments of  judges ensures “…that the judiciary ultimately stays in line with the attitudes and ideologies of the majority.”  However, the highest courts still have a responsibility to intervene on behalf of minorities and historically disadvantaged groups. 

Judges, especially on higher courts, engage in strategic power dynamics by continuously assessing their relative power against other sources of power. In this context, judiciaries are never fully independent, “even when isolated from the political branches through constitutional principles and institutional design structures.” Between strict legal rules and direct political interference exists a gray area of institutional interaction where the courts can make decisions but may be constrained by long-term and even short-term considerations about their consequences. The broader political climate thus forms the foundation upon which all power––including judicial power––is exercised.  

Where does law fit into politics? The answer is that law exists both inside and outside courtrooms—sometimes aligning with, controlling, or yielding to politics. As the International Court of Justice observed in its 2010 Advisory opinion in accordance with international law of the unilateral declaration of independence in respect of Kosovo, the fact that a question before the court has political dimensions does not strip it of its legal character.   

Based on the general outline above, the view on judicial independence should not be as polarizing, binary, and dismissive as it often appears in Armenian discourse. 

Measuring Judicial Independence 

If independence exists on a continuum, how can we determine where a particular system stands? The classic approach to measuring judicial independence examines both its de jure and de facto independence. An assessment of de jure independence focuses on legal design and safeguards, while de facto independence concerns the implementation of these protections, the independent behavior of judges, and the societal outcomes that are possible when a judiciary is independent. 

Indicators for measuring de jure  independence include rules on organizational autonomy, funding, court system management, disciplinary measures for judges, and internal independence. The judiciary’s de facto independence can be measured through the enforcement of judicial decisions, particularly those “uncomfortable” for political actors—as well as perceptions from the general public and court users such as litigants. 

This reflection cannot fully explore studies on judicial independence across the legal system. It is sufficient to note that there have been numerous expert and scholarly discussions about various aspects of de jure independence in Armenia. However, the regulatory entropy[1] afflicting Armenia’s legal system since independence also stems from epistemic communities rejecting evidence-based lawmaking and systematic investigations into law enforcement. By “communities” here, I primarily mean university law departments.

Concluding Remarks 

As you may have noticed, this text makes few references to specific provisions of the Constitution or to domestic and international law. This was deliberate: the goal has been to broaden our perception of judicial independence and to encourage deeper reflection on its meaning. Ultimately, judicial independence is not only a matter of codified rules—laws arranged in hierarchies, interpreted according to prescribed methods, and applied to specific cases. It is also about what and how we think about law beyond technical expertise. It encompasses our sense of duty, worldview, convictions, legal education, and the ability to stand, within our limits, against the force of raw power. Along such a path, the law can guide and shape our actions, but the choice of direction always rests with us.

Footnotes: 

[1]‘It signifies the tendency for regulatory systems – comprising laws, rules, standards, guidelines, and enforcement mechanisms – to grow in complexity, fragmentation, inconsistency, and unpredictability over time because of various pressures.’ More on this see here

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