Indicator 16.7.1 Proportions of positions in national and local institutions, including (a) the legislatures; (b) the public service; and (c) the judiciary, compared to national distributions, by sex, age, persons with disabilities and population groups

Indicator 16.7.1: Proportions of positions in national and local institutions, including (a) the legislatures; (b) the public service; and (c) the judiciary, compared to national distributions, by sex, age, persons with disabilities and population groups

Target 16.7: Ensure responsive, inclusive, participatory and representative decision-making at all levels

UNDP Oslo Governance Centre

Definition:

This metadata is focused only on the judiciary sub-component of indicator 16.7.1. It measures representation in the judiciary with respect to the sex, age, disability and population group status, and assesses how these correspond to the proportion of these groups in society as a whole.

More specifically, this indicator measures the proportional representation of various demographic groups (women, youth, persons with disability, and nationally relevant population groups) across two key decision-making positions in the judiciary (judges and registrars) as well as across three ‘levels’ of courts, namely ‘supreme/constitutional courts,’ ‘higher-level courts’ and ‘lower-level courts’.

Concepts:

This indicator builds on various concepts and terms from international statistical standards and classifications as well as normative frameworks. The concepts and terms used for this indicator reflect general features of judiciaries around the world, while recognizing that different countries have their own legal systems informed by their specific histories and cultures, which in turn determine the specific functions and form of the judiciary in a given country. The below concepts and definitions were elaborated with a view to being broad enough to accommodate these national specificities:

• Focus on formal court system: The judiciary is the system of courts that constitutes the branch of central authority in a country concerned with the administration of justice. The judiciary sub-component of SDG indicator 16.7.1 focuses on the formal court system and does not include within its scope informal mechanisms (e.g., religious, tribal, or traditional dispute resolution mechanisms).
• Levels of courts: The indicator disaggregates between three ‘levels’ of courts to reflect the way in which courts are used, namely ‘supreme/constitutional courts,’ ‘higher-level courts’ (courts that handle national issues or appeals), and ‘lower-level courts’ (courts – typically of first instance – that commonly handle local issues, such as disputes involving family, land, and government benefits and services). This broad categorization is elaborated to encompass the diversity of judicial systems across the world, including across different types of legal systems (common law, civil law, etc.) and across different types of government (unitary, federal, etc.):
• Supreme/constitutional courts: Supreme/constitutional courts are the courts within a country with the highest authority to interpret the law. The category includes both supreme courts (i.e., the highest judicial bodies in the domain of civil and criminal jurisdiction) and constitutional courts (i.e., the legal bodies responsible for ensuring the compatibility of legislation with the provisions and principles of the constitution in each country, in particular to protect constitutionally-established rights and freedoms). Constitutional courts include those courts that sit only on constitutional issues, as well as courts that sit as constitutional courts only on occasion when constitutional issues arise. In federal court systems, highest courts include supreme courts and constitutional courts at the national level, but excludes any supreme courts that may exist at sub-national levels, as these should be included within the category of higher-level courts. In certain jurisdictions, the supreme court and constitutional court might be one and the same and therefore there would be just one court for the category of supreme/constitutional courts.
• Higher-level courts: Higher-level courts include other high courts, high-level courts, and courts of appeal. In federal court systems, higher-level courts include higher-level courts at both the national and sub-national levels, and also include supreme courts at sub-national levels.
• Lower-level courts: Lower-level courts encompass first-instance or frontline courts of local jurisdiction. This category includes local courts, district courts, magisterial courts, and magistrate courts. In federal court systems, lower-level courts include lower-level courts of both national and sub-national court systems.
• Finally, a note about specialized courts is in order: The determination of whether specialized courts or tribunals, or a subset thereof, fall within supreme/constitutional, higher-level, or lower-level courts is left to the discretion of countries. Specialized courts are courts that have limited jurisdiction over a specialized subject matter, and may include, but are not limited to, war crimes courts, gender-based violence courts, commercial courts, finance courts, labour courts, family courts, property courts, military courts, administrative courts, social welfare courts, juvenile courts, courts for organized crime, narcotics, and corruption, etc. In many jurisdictions, specialized courts are considered higher-level courts. In such jurisdictions, these specialized courts might have exclusive or original jurisdiction over certain claims, and therefore act in the first instance for those claims, but are nevertheless considered higher-level courts. In other jurisdictions, specialized courts might be considered lower-level courts or supreme courts. Some jurisdictions might categorize a subset of specialized courts as higher-level courts and another subset as lower-level courts.
• Decision-making positions: Target 16.7 focuses on ‘decision-making’ and the extent to which it is responsive, inclusive, and representative. In the judiciary, decision-making power and leadership roles are essentially held by individuals in two types of positions, namely judges and registrars. Judges play important roles in decision-making by carrying out their core functions of interpreting laws and adjudicating controversies over the application of laws to particular circumstances. Registrars assist judges in performing their functions and play an important role in case management, including by scheduling hearing dates, registering court documents, receiving fees emanating from court matters, preparing case files, drafting decisions, and executing court decisions. Additionally, in certain circumstances, they can perform judicial or quasi-judicial functions themselves, including making decisions on interlocutory applications, assessment of damages, and applications for the entry of default judgments. The judiciary sub-component of SDG indicator 16.7.1 does not cover other positions such as: court-annexed alternative dispute resolution professionals (individuals appointed by the state to decide upon an adjudicatory dispute resolution process, such as arbitrators and mediators); non-legal court personnel (part-time or full-time individuals paid by the state to support the administration of the judicial system, such as bailiffs, tipstaff, secretaries, notaries, paralegals, and administrators); or state-funded legal professionals within the justice sector (individuals paid by the state to carry out the representation or prosecution of an individual in a legal proceeding, including prosecutors, public defenders, and legal aid service providers). While these individuals play some role in the functioning of the justice system as a whole and are supported by state funds, they do not constitute the judiciary as it is understood by most countries. Additionally, they are typically accounted for in the public service sub-component of SDG indicator 16.7.1 (i.e. SDG 16.7.1b).
• Judge (alternatively called ‘justice’, ‘magistrate’, or ‘jurist’): A judge is a person authorized to decide cases in a court of law. UN DESA’s Manual for the Development of a System of Criminal Justice Statistics defines ‘professional judges or magistrates’ as both full-time and part-time officials authorized to hear civil, criminal, and other cases, including in appeal courts, and to make dispositions in a court of law. This category includes associate judges and magistrates who may be so authorized.^[3]
• Registrar (alternatively called ‘clerk’, ‘judicial officer’, ‘Rechtspfleger’, ‘secretario de estudio y cuenta’, ‘secretario general’, ‘secretario de acuerdos’, ‘greffiers’, ‘المسجلون’): A registrar is a judicial officer of the court entrusted with judicial or quasi-judicial functions who has autonomous competence. A registrar’s decisions may be subject to appeal in certain circumstances.
• Definition of “youth”: youth for the purpose of this indicator is defined as 44 years old and below, because positions in the judiciary require training and experience. This cutoff also provides consistency with sub-component (a) of SDG 16.7.1 on parliaments which uses a similar cutoff for ‘youth’, based on the Interparliamentary Union’s definition of ‘young MPs’ as MPs aged 45 and below (see metadata for SDG indicator 16.7.1(a)).
• Information for part-time positions should be given in full-time equivalents and should be counted only for permanent posts actually filled. It is important to consider the part-time or full-time status of posts to address the risk that some target groups may be underemployed and over-reported (e.g., if women are more likely to receive part-time posts than full-time posts, there might be a false impression that women are equally represented in those posts, when in reality they adjudicate a smaller portion of cases than their male counterparts due to their part-time status).
• Disability status: To disaggregate data on judges and registrars by disability status, it is recommended that countries use the Short Set of Questions on Disability elaborated by the Washington Group.^[4]

Ratio

Human Resource Management Information System (HRMIS) of Judicial Service Commissions, Ministries of Justice, or other similar competent bodies with oversight over the judiciary for data collection are most likely to collect data on the staffing of the judiciary.

National Statistical Offices (NSOs) with relevant primary data-producing entities (Judicial Services Commissions - also referred to as Councils of Justice, Councils of the Judiciary, Judicial Offices, Federal Judicial Centres, Ministries of Justice, or other similar competent bodies managing human resources for the judiciary, handling the appointment of judges and registrars, or otherwise having some oversight role over the judiciary).

• Tokenism: While the indicator provides a good measure of progress in overcoming historical or ongoing discrimination, it cannot detect tokenism where official job titles mask a lack of influence in practice or other forms of discrimination within the judiciary that may affect the ability of certain judges or registrars to participate in decision-making. For example, women in the judiciary may face institutional, cultural, or other constraints that restrict them from exercising their decision-making power.^[8] IDLO’s Women Delivering Justice Report (2018) notes that stereotypes in certain jurisdictions might dictate that women can rule on family court cases, but that they are not suited to decide criminal cases because of the perceived danger of such roles.^[9]
• Rationale for computing ratios rather than proportions: It may be noted that the below computation methods lead to ratios rather than simple proportions. The rationale for this is simple: While a simple proportion of ‘young’ judges in the judiciary is not internationally comparable, a ratio computed using the above formula is. For instance, 48% of ‘young’ judges (aged 44 or below) may be an overrepresentation of youth in country A where only 30% of the national population of working-age falls in this age bracket (Ratio = 48/30 = 1.6), but in country B where 70% of the national population of working-age is aged 44 and below, the same 48% would be interpreted as under-representation (Ratio = 48/70 = 0.69). In this example, the figure of 48% is not internationally comparable in relation to the national population (it means over-representation in one country and under-representation in another), but the ratios 1.6 and 0.69 are internationally comparable. They help us understand whether 48% of judges aged 44 and below is close to, or far from, proportional representation of this age group in the national population.
• Sensitivity of collecting disability and population group data: Data disaggregated by disability and population group may not be readily available in many countries. Collecting this data for judges and registrars may therefore require additional investment in data collection systems, with a corresponding investment in human capacity to analyse the data and use the information generated in recruitment and human resources policies for the judiciary. Moreover, some countries may impose legal restrictions on collecting data on certain target groups (e.g. disability often falls under the umbrella of health data, and is therefore confidential, thus preventing Judicial Services Commissions, Ministries of Justice, or other similar competent bodies from releasing this information even on an anonymous basis; likewise, several countries actively restrict or ban identification of ethnic or religious status, in order to protect vulnerable populations or discourage inter-ethnic conflict. As such, it is left to the discretion of each country to determine which groups should be highlighted when disaggregating totals for judges and registrars).^[10] Collecting disaggregated data should be subject to the legality of compiling such data in a particular national context and to a careful assessment of the potential risks of collecting such data for the safety and privacy of respondents. Meanwhile, most countries already produce sex-disaggregated data on judges and registrars and therefore countries are expected at a minimum to be able to report sex-disaggregated data for overall totals of individuals occupying these two positions, as well as for overall totals disaggregated by the three levels of courts cited above.
• Rationale for the age disaggregation: The number of young persons in the judiciary tends to be relatively small, particularly in contexts where judges typically assume their position based on seniority. While in such contexts disaggregation on the basis of age may not be very insightful, in others contexts, such as that of new democracies where judges are typically younger, age-disaggregation can be a more meaningful measure of representation. The presence of a large proportion of ‘young’ judges in post-conflict countries, for example, can indicate a country’s investment in its justice system. Even if null values for the number of ‘young’ judges are likely to be common in many countries, there is an inherent awareness-raising value in tracking representation of ‘young’ judges and registrars, to help call attention to the challenges faced by younger age-brackets in accessing decision-making positions. Additionally, age-disaggregated data becomes particularly relevant when considering the intersectionality of age with other demographic variables (e.g. a growing proportion of ‘young’ female judges could signal that a country is making concerted efforts to invest in increasing female participation in decision-making positions over the longer-term).
• Normative framework: Global reporting on this indicator includes data disaggregated by sex, age, disability, and population group. Disaggregated data that allows for comparison of these target groups to understand the situations of specific groups are central to a human-rights based approach to data and form part of countries’ obligations under international human rights treaties. OHCHR guidance on data collection and disaggregation for SDG monitoring urges that capacities and partnerships be developed to enable countries to meet their obligation to collect and publish disaggregated data:^[11]
  • Sex is an important component of SDG indicator 16.7.1(c), as it tracks the extent to which judiciaries are inclusive and representative of women with a view to achieving equal representation of women and men. Women are largely underrepresented in judiciaries, particularly in the highest-level positions, according to A Practitioner’s Toolkit on Women’s Access to Justice Programming (2018), published by UN Women, UNDP, UNODC, and OHCHR. Sex-disaggregated data on individuals occupying decision-making and leadership positions in the judiciary can shed light on the existence of gender-based inequalities in accessing such positions. The Convention on the Elimination of All Forms of Discrimination Against Women (1979) provides the basis for realizing equality between women and men through ensuring women's equal access to, and equal opportunities in, political and public life, including the right to participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government (Article 7). States parties agree to take all appropriate measures to overcome historical discrimination against women and obstacles to women’s participation in decision-making processes (Article 8), including legislation and temporary special measures (Article 4). The Beijing Declaration and Platform for Action (1995) also calls on governments to ensure women’s equal access to and full participation in power structures and decision-making, including in the judiciary, by setting specific targets and implementing measures to substantially increase the number of women in all governmental positions.
  • Age: Security Council Resolution 2250 of 2015 urges Member States to consider ways to increase inclusive representation of youth in decision-making at all levels in local, national, regional, and international institutions and mechanisms for the prevention and resolution of conflict and to counter violent extremism.
  • Disability: The United Nations Convention on the Rights of Persons with Disabilities (2006) calls upon State Parties to ensure that persons with disabilities^[12] can effectively and fully participate in political and public life on an equal basis with others. General Comment No. 7 (2018) on Article 4.3 and 33.3 on the participation of persons with disabilities in the implementation and monitoring of the Convention, drafted by the Committee on the Rights of Persons with Disabilities, acknowledges the positive impact that the participation of persons with disabilities has on decision-making processes. Their involvement in all forms of decision-making empowers persons with disability to convey their views and lived experiences, enabling them to advocate for their rights and realize their aspirations. Moreover, participation of persons with disability is a critical component of good governance and democracy, as it helps to hold authorities accountable to their commitments in this area, to make them more responsive to the requirements of persons with disability, and to promote and protect the rights of such persons. Persons with disabilities are consistently under-represented in decision-making processes, as is noted in UNDP’s Disability Inclusive Development Report: Guidance and Entry Points (2018). Persons with disabilities face significant challenges and barriers to their inclusion and ability to fully participate in society. Employment rates for persons with disability are lower than for persons without disabilities, and equal and effective access to justice can be a significant obstacle for persons with disabilities. As part of the emphasis across the 2030 Agenda to ‘leave no one behind,’ participation and representation of persons with disability in public institutions and decision-making processes, including in the judiciary, is crucial to reaching those that are often left furthest behind.
  • Population groups: The collection of data on relevant population groups^[13] occupying decision-making and leadership positions in the judiciary is critical to assessing the inclusivity and representativeness of judiciaries. Increased judicial diversity with respect to populations groups strengthens the ability of judicial mechanisms to consider and respond to varied social contexts and experiences, which improves the justice sector’s responses to the needs of vulnerable and marginalized groups. When various national population groups are well-represented among judges and registrars, this can in turn improve access to justice by these various groups. Representative decision-making builds confidence among population groups and supports social cohesion and the ‘sustaining peace’ framework.^[14] Notably, the World Bank’s Pathways for Peace study stressed the centrality of inclusion in the justice and security sectors to the prevention of conflict. The International Convention on the Elimination of All Forms of Racial Discrimination (1965); Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (1992); and the Declaration on the Rights of Indigenous Peoples (2007) provide that persons belonging to racial and minority groups and indigenous peoples have the right to participate in the political, economic, social, and cultural life of the State.

Indicator 16.7.1(c) aims to compare the proportion of various demographic groups (by sex, age, disability status, and population group) represented in the judiciary, with the proportion of these same groups in the national population. More specifically, the proportional representation of these groups assessed across two key decision-making positions in the judiciary (judges and registrars) as well as across three ‘levels’ of courts.

Global reporting on indicator 16.7.1(c) for judges can be done in three steps:

Step 1 requires data producers to compile the raw numbers of personnel in the judiciary, disaggregated along the two position types and three levels of courts. The table below provides an illustration of how this “raw” data can be compiled. (NB: For ease of presentation, this table excludes ‘total’ columns and rows, which data producers may wish to include).

Step 2 then requires computing simple proportions of women, ‘youth’, persons with a disability, and specific population groups across the two position types and at each level of court.

Step 3 then requires generating ratios comparing the proportion of women, ‘youth’, persons with a disability, and specific population groups in the judiciary relative to the proportion of the same groups in the national population of working age, across the two position types and at each level of court.

The World Population Prospects database, published by the United Nations Population Division, provides official statistics collected from over 230 national statistical offices on national population sizes disaggregated by age (groups) and sex. These statistics are required to calculate the denominators of the sex and age-related ratios.

It should be noted that when comparing ratios of certain groups in the judiciary with corresponding shares of the same groups in the national population, it is important to use the working-age population of that group in the national population as a comparator i.e. the age range above the age of eligibility for that position and below the mandatory age of retirement for that position. These lower and upper age boundaries will vary depending on the country, and need to be defined by each country in the below formula.

The resulting ratios can be interpreted as follows:

• 0, when there is no representation at all in the respective sub-category of the judiciary
• <1, when the representation in the respective sub-category is lower in the judiciary than in the working-age population
• =1, when the representation in the respective sub-category is equal across the judiciary and the working-age population
• >1, when the representation in the respective sub-category is higher in the judiciary than in the working-age population

Prioritization:

Countries are expected to fill out the above table to the best of their ability, and to report as many representation ratios as possible, for women, ‘youth’, persons with a disability, and specific population groups, across all position types and court levels. Meanwhile, global reporting on indicator 16.7.1(c) will focus on the ratios calculated across all levels of courts (i.e. the bottom row in the above table).

2022-03-31

UNDP Oslo Governance Centre

This indicator can also be used to monitor SDG target 5.5 on women’s “full and effective participation and equal opportunities for leadership at all levels of decision-making in political, economic and public life,”^[1] which does not have an indicator specifically focused on decision-making in the judiciary, and SDG target 10.2 on the promotion of the “social, economic and political inclusion of all, irrespective of sex, age, disability, race, ethnicity, origin, religion or economic or other status”, which only has one indicator measuring economic exclusion.^[2]

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