Illiberalism Enabled by the Coronavirus Pandemic: An Existential Threat to Judicial Independence

For more than a decade, we have witnessed an erosion of political freedoms and civil liberties across the world amidst a democratic backsliding toward autocracy, a system of government in which a single person (the autocrat) possesses absolute power to weaken institutions such as an independent judiciary that sustain the democratic system. At the same time, a surveillance-based economy and anti-democratic threats this poses have thrived. The coronavirus pandemic has enabled these trends, giving authoritarian leaders and surveillance capitalists the opportunity to make massive shifts and reprogramming of our sensibilities about privacy and civil liberties that may not be reversible. The author argues that judicial leaders and court administrators around the globe will need to readjust and adapt to the realities of governance in this new era of illiberalism. He recommends three key changes that courts and justice systems around the world may need to make to deliver justice in the face of the challenges: first, creating a new narrative, one that is less combative, one that aggressively eschews the past’s sharply polarized relationships between the judicial branch and the other two branches of government, and one that makes people partners instead of opponents; second, a new approach that puts major emphasis on good governance of the judicial branch, with a focus on competence and performance, an approach that mutes the more strident demands by judicial leaders for absolute judicial independence, coequal status of the judiciary with the executive and the legislative branches of government, and a perfect balance of power between them; finally, “going global” and linking up with international partners for global solidarity and collective action, thereby gaining influence and strength from international support back home.