By Nihal Jayawickrama –
The edited text of a presentation made at the Conference of Chief Justices and Presidents of Supreme Courts and Constitutional Courts of Africa convened by the Chief Justice of the Supreme Constitutional Court of Egypt, in Cairo last week. Although two Sri Lankans were intimately involved in the processes that led to the formulation of the Bangalore Principles of Judicial Conduct, the Sri Lanka Judiciary remains one of the few judiciaries in the world that have failed to incorporate these Principles in a code of judicial conduct of its own.
From Independence to Accountability –
THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT
In 1985, the United Nations agreed upon certain basic principles that underpin judicial independence and called upon governments to implement them. They are contained in the UN Basic Principles on the Independence of the Judiciary. Judicial independence is the right enjoyed by people when they invoke the jurisdiction of the courts seeking and expecting justice. It is not a privilege accorded to the judiciary. It refers to the state of mind of the judge. It refers also to the institutional arrangements that enable the judge to enjoy that state of mind. These include constitutional guarantees of security of tenure and of remuneration, removal from office only for misbehaviour or infirmity of body or mind, and protection against vexatious litigation instituted by dissatisfied parties. Within that constitutional framework, and buttressed by the judicial oath, it was assumed that a person appointed to judicial office will acquire that state of mind that would enable him or her to decide any matter honestly and impartially on the basis of the law and the evidence, without external pressure or influence, and without fear of interference from anyone, including other judges.
Twenty-one years later, in 2006, the United Nations invited governments to encourage their judiciaries to implement the Bangalore Principles of Judicial Conduct. It described the Bangalore Principles as being “a further development” of, and as being “complementary” to, the 1985 Principles relating to judicial independence. Why did it become necessary to look beyond judicial independence? Why did the focus move from securing judicial independence to ensuring the ethical conduct of members of the judiciary; from judicial independence to judicial accountability. I would venture to suggest five reasons.
First: The independence of the judiciary was traditionally believed to be endangered by state authorities and state functionaries. With the steady growth of the corporate sector, the independence of the judiciary has to be secured from business and corporate interests too. In the contemporary world, judicial independence implies not only that the judiciary should be free from governmental and political pressure, but also that judges should not succumb to the enormous power, wealth and resources of the corporate sector.
Second: In the countries of Central and Eastern Europe that rejected their authoritarian regimes in the final decade of the twentieth century, the judiciary had been a component of the machinery of the State. The judges were bureaucrats wedded to the authoritarian State. Now, almost overnight, they were required to emancipate themselves. They were required to demonstrate a strong attachment to democracy and human rights. They were required to become major players in fashioning the social, moral and political fabric of their emerging democracies. They needed to adopt values that matched these public expectations. They needed self-regulatory standards that recognized the new responsibilities which they had accepted.
Third: Even in the old, established, functioning democracies, the role of the judge had begun to change. With the emergence of an international human rights regime, the function of the judge now extended beyond dispute resolution. The judge was called upon to address broad issues of social values and human rights, and to decide controversial moral issues, and to do so in increasingly pluralistic societies. A judge may not be equipped to do this if he or she continued to live in what one distinguished judge described as a regime that is “monastic” in many of its qualities. On the other hand, if judges should be, and be seen to be, involved in the community in which they live, and to be in touch with current social norms, it becomes necessary to identify standards of conduct appropriate to that new role.
Fourth: Credible evidence had begun to surface of widespread corruption in judicial systems in many parts of the world. It was claimed in service delivery surveys that those who sought and accepted bribes included not only court staff and the opponent’s lawyer, but also the judge. A commission of inquiry into corruption in an African country documented numerous proved instances of personal secretaries, typists, court clerks, prosecutors and magistrates soliciting or accepting bribes. In my own country, a national survey of court users and other stakeholders found that corruption was rampant in the judicial system, and that most judges were aware of its occurrence. They even identified five of their colleagues as bribe takers.
Corruption in the judiciary extends beyond conventional bribery. An insidious and equally damaging form of corruption arises from the interaction between the judiciary and the executive, and from the relationship between the judiciary and the legal profession. For example, the political patronage through which a judge may have acquired his office, a promotion, preferential treatment or the promise of employment after retirement, gives rise to corruption when the executive makes demands on such judge. Similarly, when a family member regularly appears before a judge, or when a judge selectively ignores sentencing guidelines when a particular counsel appears, or statistics reveal a high rate of decisions in favour of the executive, the conduct of the judge is almost certain to raise, in the minds of others, the suspicion that the judge is susceptible to undue influence in the discharge of his or her of duties.
Fifth: Evidence had begun to surface that, in many countries, the people were losing confidence in their judicial systems. They were dissatisfied with the escalating cost of justice. They were dissatisfied with the delays; the inevitable postponements to accommodate lawyers who needed to be in other courts at the same time. They were dissatisfied with the complicated procedural steps that often also meant several gatekeepers requiring payment to facilitate movement to the next stage of the proceedings. As for the judiciary itself, we have it on the authority of Mr Justice Michael Kirby, once Australia’s longest serving judge, that there invariably is, though not necessarily in every court, “a rude judge, a slow judge, an ignorant judge, a prejudiced judge, a sleeping judge, an absentee judge, and an eccentric judge”.
These were all seen as indicators of judicial systems in a state of crisis. The people were frustrated by the failure of the authorities to address these issues. The frustration was such that, in certain jurisdictions, some did not hesitate to take the law into their own hands. In Venezuela, for instance, angry citizens took to lynching alleged murderers, rapists and even car-thieves on nearly a weekly basis somewhere in the country. The question, therefore, was whether a judge could claim that what goes on below the bench, in the court registry, and outside the courtroom, is not a matter for him or her, and that the judge’s only concern is with the niceties of legal argument?
I was then functioning as Executive Director of Transparency International at its secretariat in Berlin. Responding to this phenomenon of judicial independence being traded for money and other benefits, we took the initiative, with the assistance of UNCICP in Vienna (now UNODC) to invite a group of Chief Justices to formulate a concept of judicial accountability without eroding the principle of judicial independence. The challenge was to determine how the judiciary could be held to account in a manner that was consistent with the principle of judicial independence. Power is given on trust, and judicial power is no exception. How does one achieve the right balance between autonomy in decision-making and independence from external forces on the one hand, and accountability to the community on the other?
Judicial Integrity Group
That group of Chief Justices – or the Judicial Integrity Group, as it has now come to be known – first met in Vienna in 2000. They were drawn from ten common law countries in Asia and Africa which applied many different laws but shared a common judicial tradition and spoke a common legal language. The UN Special Rapporteur on the Independence of Judges and Lawyers, the Chairman of the UN Human Rights Committee, and the Vice-President of the International Court of Justice, also participated in this initiative. At that meeting, the Judicial Integrity Group recognized that the principle of accountability demanded, firstly, a universally acceptable statement of core judicial values which are capable of being enforced by the judiciary without the intervention of the executive and legislative branches of government; secondly, that the judiciary should assume an active role in strengthening judicial integrity by introducing such systemic reforms as are within its competence and capacity; and thirdly, that transparency at every critical stage of the judicial process will enable the community, especially through its legal academics, civil society, and a free media, to judge the judges.
The Bangalore Draft
At the request of the Group, I prepared an initial draft statement of principles of judicial conduct. I did not attempt to reinvent the wheel. Instead, I drew on rules and principles already expressed in national codes of judicial conduct (wherever they existed) and in regional and international instruments. At its second meeting in Bangalore in 2001, after three days of discussion, the Group agreed upon the text of a document that came to be known as the Bangalore Draft Code of Judicial Conduct. That draft suffered from a fundamental weakness in that it was the product of judges of the common-law tradition. It needed to be authenticated by judges of other legal traditions as well.
The Bangalore Principles
Over the next twenty months, the Bangalore Draft was translated into several national languages and widely disseminated among senior judges of both common law and civil law systems from over 75 countries. It was discussed at several judicial conferences. It was reviewed by constitutional and supreme courts and by judges’ associations, especially in Central Europe. In Strasbourg, the Consultative Council of European Judges (CCJE) held a special meeting to enable its members to discuss it. The CCJE commissioned a study on it, and then reviewed it from the perspective of the civil law system. With the benefit of the wisdom of others gathered in this intensive consultation exercise, the “Bangalore Draft” was further revised. It was then placed before a Round-Table Meeting of Chief Justices drawn principally from civil law countries, held at the Peace Palace at The Hague in November 2002. That meeting was also attended by Judges of the International Court of Justice. Nearly every legal system in the world was represented. Several changes were made to the Draft, and from that meeting emerged the Bangalore Principles of Judicial Conduct. They are based on six core judicial values: Independence, Impartiality, Personal Integrity, Propriety, Equality, and Competence and Diligence. At a meeting in Colombo in January 2003, the Group also prepared Principles of Conduct for Judicial Personnel, following a consultation process with selected court registrars.
Endorsement by the United Nations
In April 2003, the Bangalore Principles were presented by the UN Special Rapporteur to the UN Commission on Human Rights. In a resolution that was unanimously adopted, the Commission brought them “to the attention of Member States, the relevant UN organs and intergovernmental and non-governmental organizations for their consideration”. In 2006, the Economic and Social Commission (ECOSOC) invited Member States to encourage their judiciaries to take into consideration the Bangalore Principles when developing rules with respect to the professional and ethical conduct of judges. In 2007, an Inter-Governmental Expert Group of over a hundred participants, many of whom were judges, examined and agreed upon a 175-page Commentary on the Bangalore Principles prepared by the Judicial Integrity Group at the request of ECOSOC. That Commentary is designed to facilitate a better understanding of the applicability of the core values and principles to issues, situations and problems that are likely to arise or emerge. It is also designed to enable judges and the community in general to understand the cross-cultural basis of the Bangalore Principles. In 2010, the Judicial Integrity Group agreed on Measures for the Effective Implementation of the Bangalore Principles. That statement of measures is in two parts. The first describes action that is required to be taken by the judiciary. The second describes the institutional arrangements that are required to be established to ensure judicial independence and accountability, and which are exclusively within the competence of the State.
Four other significant developments have since taken place. The first was the UN Convention Against Corruption (UNCAC) which imposed a treaty obligation on states parties to take measures to strengthen judicial integrity, citing a code of judicial conduct as one such measure. The states parties to that Convention have now endorsed a detailed Implementation Guide and Evaluative Framework in respect of Article 11 which addresses the issue of judicial and prosecutorial integrity. That Guide draws extensively from the Bangalore Principles and related documents. The second was the adoption in 2013 by Chief Justices of the Asian Region, and the subsequent endorsement in 2016 by the Chief Justices of the Balkan Region, of the Istanbul Declaration on Transparency in the Judicial Process. The third, which arose out of the 2015 UN Congress on Crime held in Doha, is the launching by UNODC of the Global Judicial Integrity Network to promote the implementation of the Bangalore Principles and Article 11 of UNCAC. It is an initiative that seeks to bring together judges’ associations and judicial networks to exchange good practices, and provide capacity-building support, advisory services, tools, networking opportunities and other relevant resources to national judiciaries. Finally, in 2016, a sixteen-year journey ended when the United Nations formally included the Bangalore Principles of Judicial Conduct in its Compendium of UN Standards and Norms relating to the Administration of Justice. It is now the global standard of judicial conduct.
Implementation of the Bangalore Principles
The Bangalore Principles are intended to establish standards of ethical conduct for judges. They are designed to provide guidance to judges in the performance of their judicial duties, and to afford the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand the judicial role. They offer the community a standard by which to measure and evaluate the performance of the judicial sector.
The Bangalore Principles provide the judiciary with a framework for regulating judicial conduct. It is for each national judiciary to adopt, or adapt, them, having regard to their own judicial systems. They need to be crafted to meet the needs of each court. The issues that arise in courts of first instance are not likely to be of relevance in the appellate courts. In the United Kingdom, for example, there is a Guide to Judicial Conduct for the Supreme Court, and a separate Guide to Judicial Conduct for the rest of the judiciary. On the other hand, in the Philippines, there is a single code that is applicable to judges at all levels. The Bangalore Principles have been the model for codes of judicial conduct from Belize in the Caribbean to the Marshall Islands in the Pacific, from Tanzania to the Philippines, from Bolivia to Jordan. However, the issues that arise in their application may be different in each country. Some years ago, I had the opportunity, together with a Nigerian judge, to prepare a Judicial Ethics Training Manual for the Nigerian Judiciary. What I learnt from my Nigerian colleague and from Nigerian judges who participated in several “Training the Trainers” sessions was that several of the ethical issues that arise in that country will not be replicated even in some of the other countries on that continent. What is important is not to confuse the principles with the issues that are likely to arise in their application.
If all that a national judiciary does is to incorporate the Bangalore Principles into its own code of conduct, then, that code will remain a mere aspiration. There is much more that needs to be done to transform those aspirations into something more tangible and real in the lives of the people whom the judges are expected to serve. To begin with, a credible, independent, mechanism, such as a Judicial Ethics Review Committee, consisting of judges but also including sufficient lay representation to attract the confidence of the community, needs to be established. That committee will receive, inquire into, and resolve complaints of unethical conduct. Unethical conduct is often different from misconduct that calls for disciplinary action. Professional standards represent best practice which judges should aim to develop. They should not be equated with conduct justifying disciplinary proceedings unless a breach of professional standards is alleged to constitute conduct sufficient to justify and require disciplinary sanction. It may be useful to establish a Judicial Ethics Advisory Committee consisting of senior or retired judges which judges may consult on issues that are likely to impact on judicial conduct.
A judicial reform process should not end there either. The Bangalore Principles should be employed to deliver effective, inexpensive and expeditious justice. The Implementation Measures and the Istanbul Declaration recommend a string of reforms capable of being initiated by the judiciary. For example, procedures need to be established to facilitate and promote access to justice. Modern case management techniques should be introduced, and the movement of a case should be monitored and controlled by the judge. Transparency in the exercise of the judicial office, not only through public hearings, but also by making judgments and court records available to the public; standard, user-friendly forms and instructions; courthouses that are accessible to court-users; pre-determined arrangements for the assignment of cases; regular monitoring of the quality of justice, and public satisfaction with the delivery of justice, through case audits and surveys of court users, and the publication of the results of such surveys and audits; judicial ethics training; exposure to international human rights and humanitarian law, as well as environmental law; alternative dispute resolution; and judicial outreach programmes to educate the public on the role of the justice system in society and to address common misconceptions about the system, are among the measures that have been identified as being essential elements of a reform programme based on the Bangalore Principles.
The obligation of the State
A code of judicial conduct cannot stand alone. It must be complemented with constitutional guarantees of judicial independence. The constitution should provide for an independent appointment mechanism. Qualifications for judicial office should be prescribed, and these should include not merely legal expertise, but also social sensitivity and other essential qualities. Judicial tenure must, of course, be guaranteed, and removal from judicial office should only be for conviction of a serious crime, proved physical or mental incapacity, gross incompetence, or conduct that is manifestly contrary to the impartiality and integrity of the judiciary. The judiciary should be provided with sufficient funds to perform its functions efficiently and without an excessive workload, and judges should receive remuneration that is commensurate with the status, dignity and responsibilities of their office.
Finally, I wish to highlight two matters. The first is to emphasize that the strength and, indeed, the legitimacy of the Bangalore Principles and related instruments are derived from the fact that they were crafted by judges, based on their own experience as judges and are intended to be utilized by judges who form the core of the justice system. The second is to say what a humbling experience it was for me, when preparing the draft Principles, and thereafter the draft Commentary, to learn that these core judicial values and principles and even detailed statements of their applicability were already to be found in the texts of ancient Egypt and in Hindu Law in or around 1500 BC.; in Buddhist philosophy in 500 BC; in the Twelve Tables of Rome in 450 BC (which contains the injunction that “The setting of the sun shall be the extreme limit of time within which a judge must render his decision”); in Chinese law around 312 BC; in the legal systems that flourished in Africa at the same time as they did in Greece and Rome; in the writings of Jewish scholars in or about the 12th century AD; in the teachings in the Old Testament; and, in very specific and comprehensive terms, in Islamic Law. The judicial values are not only global; they are also eternal. They are part of our common heritage.