28 September, 2020

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Judicial Reform In The 21st Century: From Independence To Accountability

By Nihal Jayawickrama

Dr. Nihal Jayawickrama

Dr. Nihal Jayawickrama

In the early 1970s, while still a young lawyer practising in Sri Lanka, I was invited by the new Prime Minister to serve as Permanent Secretary to the Ministry of Justice. She asked me to be, not merely an administrator, but also an innovator. We had a judicial system introduced in the mid-19th century by the British colonial government to serve the needs of a country of two million people. It had remained unchanged, notwithstanding Independence and a ten-fold population increase. The trial rolls in original courts were long. The backlog in the appellate court was enormous. The prisons were overcrowded. Litigation was expensive. And the citizen groped, often for decades, in his search for justice, administered in a language he did not understand, by strange men garbed in scarlet and ermine robes, whose heads were covered in wigs made of white horse-hair. That was the majesty of British justice that we had preserved in its pristine purity. To adapt it to the mid-twentieth century was the challenge that had to be met. It was a challenge that was compounded by the fact that a privileged legal profession comfortably ensconced in the archaic system was quite content to leave it as it was. What was called for was systemic reform. There was not even a whisper that the stakeholders in the justice system were corrupt.

We met that challenge with three new Acts of Parliament that established a new court structure, new civil, criminal and appellate procedures, and unified a two-tier legal profession. The reforms had a dramatic impact, not only on the administration of justice, but also on the life-styles of lawyers and judges. For example, the compulsory requirement of resorting to conciliation prior to the institution of proceedings in court resulted in over 50% of civil disputes being settled without the intervention of lawyers. Unfortunately the reform package had a relatively short life span. Three years later, following a general election in which the legal profession played an active role, and a change of government, the reform legislation almost in its entirety was repealed and the hundred year-old 19th century systems were restored.

Corruption in the Judiciary

Let me fast forward to 1997 when, after almost two decades in academia, I came down from the ivory towers to work at Transparency International in Berlin. That non-governmental organization was then in its formative years, and one of its principal objectives was to identify sectors that were vulnerable to corruption, and then to formulate strategies to combat such corruption. It was almost at the turn of the century that credible evidence began to surface of corruption in judicial systems in many countries across the continents. People who participated in public perception surveys considered the judiciary to be only somewhat less corrupt that the police. Litigants who responded in service delivery surveys claimed to have paid bribes to court officials, judges, and even to the opponents’ lawyers. At or about that time several reports were published in which senior judges admitted the prevalence of corruption in their judicial systems. A presidential commission of inquiry into corruption in an African country reported that corruption in the judiciary was so widespread that the ordinary citizen had no faith in the judicial system, with many believing that justice was only for those with money. That report 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, and even identified at least five of their colleagues as bribe takers. It was a notorious fact that many a litigant or accused person found it more economical to secure the disappearance of a case record or the absence of a witness than continue to retain counsel for prolonged periods. The phenomenon of judicial corruption had finally arrived.

Undue influence on the Judiciary

Corruption in the judiciary is not limited to 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 acquires his office, a promotion, an extension of service, preferential treatment, or the promise of employment after retirement, can give rise to corruption if and 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 in cases where particular .counsel appear, the conduct of the judge gives rise to the suspicion of corruption. So does a high rate of decisions in favour of the executive. Indeed, frequent socializing with particular members of the legal profession, the executive or the legislature, or with litigants or potential litigants, almost certainly raises, in the minds of others, the suspicion that the judge is susceptible to undue influence in the discharge of his duties.

However wrong these public perceptions might have been, there was little doubt that in many countries, the people were losing confidence in their judicial systems. They were frustrated by the failure of the authorities to address the issues that had arisen – the cost of justice; the cumbersome and daunting procedures involved in going to court; the inevitable postponements to accommodate lawyers who needed to be in other courts at the same time. Many saw these as indicators of judicial systems in a perpetual state of crisis. They also saw them as indicators of the prevalence of corruption. In some jurisdictions, they even took 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 police recorded an average of 21 murders a day, comparable to casualties in a nation at war.

Judicial Independence

For a very long time it had been thought that independence was the single fundamental requirement for a national judiciary. That independence was secured when the judges were provided with certain constitutional guarantees – security of tenure, non-removability except for proved misbehaviour or incapacity, non-reduction of salaries, and immunity from being sued by dissatisfied litigants. Within that constitutional framework, and buttressed by the judicial oath, it was assumed that a person appointed to judicial office will acquire a certain state of mind that will 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. What was overlooked was that judicial independence is not a privilege of judicial office, but an essential pre-requisite for the protection of the people. The question, therefore, began to be asked how real that protection was if the evidence that was surfacing was an accurate reflection of the state of the judiciary. Was judicial independence being traded for money or other benefits? Had the judiciary begun to succumb to the enormous power, wealth and resources of the corporate sector? Was adherence to the principle of judicial independence, by itself, sufficient to ensure the delivery of effective, expeditious, inexpensive, honest justice?

Judicial Accountability

It was against that background that a pilot workshop on “Strengthening Judicial Integrity” was convened in October 1999 during the International Anti-Corruption Conference in Durban, South Africa. Its participants included judges, lawyers, legal academics, justice ministry officials, members of parliament, human rights activists and civil society representatives. From that workshop, which I had the privilege to chair, the message that came through clearly was the need to formulate and implement a concept of judicial accountability, without eroding the principle of judicial independence. Accountability was not a new or novel concept. Accountability is a constitutional requirement in a society based on the rule of law and democratic principles of governance. In such a society, every power holder, whether it be the legislature or the executive, is, in the final analysis, accountable to the people. Was there any reason why the judiciary, which is entrusted by the people with the exercise of judicial power, should not, individually and collectively, be accountable for the due performance of the functions vested in it?

It had been argued that a judge is accountable only to the law and to the judge’s conscience. But, as Justice Michael Kirby once observed, judges share the infirmities of other human beings. There is invariably, in most courts, a rude judge, a slow judge, an ignorant judge, a prejudiced judge, a sleeping judge, an absentee judge, and an eccentric judge. The challenge, therefore, was to determine how the judiciary could be held to account in a manner that was consistent with the principle of judicial independence. 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? At Transparency International we agreed that these were issues that were best resolved by the judges themselves.

Judicial Integrity Group

For that purpose, we initiated discussions with eight Chief Justices from four African and four Asian countries. All of them responded positively to our suggestion that a small group be established to address the issue of judicial accountability. These eight jurisdictions – Nigeria, Uganda, Tanzania, South Africa, Sri Lanka, Karnataka State in India, Bangladesh and Nepal – applied a multitude of different laws but shared a common judicial tradition. The United Nations Centre for International Crime Prevention convened the preparatory meeting in Vienna in April 2000. The choice of a chairperson to preside over a meeting of Chief Justices was a sensitive issue, but that was happily resolved when Judge Christopher Weeramantry, Vice-President of the International Court of Justice agreed to perform that task. Mr Justice Michael Kirby, the longest serving judge in Australia, agreed to be the rapporteur, and Dato Param Cumaraswamy, the UN Special Rapporteur on the independence of Judges and Lawyers, participated as an observer. The UN High Commissioner for Human Rights, Mary Robinson, was represented by the Chairperson of the UN Human Rights Committee and former Chief Justice of India, Justice Bhagwati. I served as the coordinator.

At its first meeting, the Judicial Integrity Group (as this group of chief justices is now known) recognized that the principle of accountability demanded, firstly, that the judiciary should assume an active role in strengthening judicial integrity by initiating such systemic reforms as is within its competence and capacity; secondly, that there was an urgent need for a universally acceptable statement of the core judicial values which, consistent with the principle of judicial independence, is capable of being enforced by the judiciary without the intervention of the executive and legislative branches of government. The Group believed that by adopting and enforcing standards of conduct based on these core values, the judiciary had the power to earn and retain the respect and confidence of the community. The Group also believed 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 Principles

At the request of the Group, I prepared an initial draft statement of principles of judicial conduct. It was not an attempt to reinvent the wheel. Instead, it drew on rules and principles already articulated in national codes of conduct (wherever they existed) and in regional and international instruments. At its second meeting in Bangalore in 2001, the Group agreed upon the text of a document that came to be known as the Bangalore Draft Code of Judicial Conduct. Over the next twenty months, the Bangalore Draft was widely disseminated among senior judges of both common law and civil law systems in over 75 countries. It was discussed at several judicial conferences. Finally, in the light of comments and criticisms received, the draft was revised and, in November 2002, it was placed before a Round Table Meeting of Chief Justices drawn principally from the civil law system, at a meeting held at the Peace Palace at The Hague, at which several judges of the International Court of Justice also participated. The final draft that emerged from this meeting – the Bangalore Principles of Judicial Conduct – seeks to identify six core values of the judiciary: Independence, Impartiality, Integrity, Propriety, Equality, and Competence and Diligence. It then proceeds to state the principle derived from each value, followed by more detailed statements of the application of each principle.

In 2006, at the request of ECOSOC, the Judicial Integrity Group prepared a 175-page Commentary on the Bangalore Principles, which was scrutinized by an intergovernmental expert group convened in Vienna by UNODC. It has now been published in several languages. In 2010, the Group prepared Measures for the Effective Implementation of the Bangalore Principles. This statement of benchmarks or guidelines, is in two parts. The first describes the responsibilities of the judiciary. The second describes the institutional arrangements to be established by the state. The Group also prepared Principles of Conduct for Judicial Personnel, following a consultation process with selected court registrars.

Implementation Measures

The measures to be taken by the Judiciary include:

  • To disseminate the code of judicial conduct widely in the community, so that legislators, public officials, lawyers, academia, civil society and the media know and understand the standards of conduct that judges are required to observe.
  • To make judicial ethics an integral element in the initial and continuing training of judges.
  • To establish a judicial ethics advisory committee to provide judges with advice on issues that are likely to impact on judicial conduct.
  • To establish a judicial ethics review committee to receive, inquire into, and resolve complaints of unethical conduct of members of the judiciary.
  • To prescribe a predetermined arrangement for the assignment of cases.
  • To formulate a code of conduct for court personnel.
  • To facilitate and promote access to justice by ensuring that court-houses are accessible to court-users, and by providing standard, user-friendly forms and instructions.
  • To adopt modern case management techniques, and to monitor and control the movement of a case.
  • To actively promote transparency in the judicial process, not only through public hearings, but also by making judgments and court records available to the public.
  • To regularly monitor the quality of justice and public satisfaction with the delivery of justice through case audits and surveys of court users, and by the publication of the results of such audits and surveys.
  • To familiarise themselves with international human rights and humanitarian law, as well as environmental law.
  • To formulate judicial outreach programmes to educate the public on the role of the justice system in society and to address common misconceptions about the system.

These are some of the measures that have been identified as being the essential elements of a reform programme based on the Bangalore Principles.

Obligations of the State

The State also has obligations in respect of the implementation of the Bangalore Principles.

  • There should be constitutional guarantees of judicial independence.
  • The qualifications for judicial office should be prescribed, and these should include not merely legal expertise but also social sensitivity and other essential personal qualities.
  • An independent appointment mechanism should be established with both judicial and non-judicial members.
  • Judicial tenure should be guaranteed, and removal from office should only be for proved incapacity, conviction of a serious crime, gross incompetence or conduct that is manifestly contrary to the independence, impartiality and integrity of the judiciary.
  • The judiciary should be provided with sufficient funds to enable it to perform its functions efficiently and without an excessive workload, and
  • Judges should receive remuneration commensurate with the status, dignity and responsibilities of their office.

In 2006, the United Nations described the Bangalore Principles as “a further development of, and as being complementary to, the 1985 Basic Principles on the Independence of the Judiciary”, and invited governments to encourage their judiciaries to implement the Bangalore Principles of Judicial Conduct. The UN Convention Against Corruption has now 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. These developments at the international level underscore a global concern about the state of national justice systems; a concern that made it necessary to look beyond judicial independence and establish the concept of judicial accountability.

International “soft law”

It is interesting to recall that the resolutions passed by different UN organs – the UN Commission on Human Rights in 2003, the UN Commission on Crime Prevention and Criminal Justice in 2005, the UN Economic and Social Commission in 2006 and thereafter, and now by the Conference of States Parties to the United Nations Convention against Corruption – in respect of the Bangalore Principles and its Commentary and Implementation Measures – were resolutions in which governments endorsed and adopted instruments in the preparation of which they had not been consulted or participated. It was in stark contrast to the 1980s, in the height of the cold war, when the UN Basic Principles on the Independence of the Judiciary were being formulated by the UN Crime Commission in Vienna, and a parallel exercise with the same objective was proceeding in Geneva in the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, and the much more comprehensive statement of principles prepared by that body was ignored because, as the United Nations then pronounced, standard-setting was the “business of governments”, and “not of experts”. I must record the fact that the success achieved in the creation of this “soft law” at the international level was entirely due to the ingenuity of colleagues at UNODC Vienna.

Judicial values are eternal

In conclusion, 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 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.

*Based on a presentation made at the Conference of the Asian Society of International Law on “The Rule of Law and Development Nexus: A New Deal for Asia?” in Bangkok last week.

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Latest comments

  • 1
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    A very illuminating presentation especially at a time when there is a reformation of the judicial, political and administrative systems are being envisaged. It will be interesting to observe where the actions of Mohan Peiris, Sarath Silva, GL peiris, Gotabhaya would sit in this context. Bensen

  • 2
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    A few simple steps to follow.:

    1All judges appointed since 2010 to SC and CoA should step down immediately. Too many political appointees at present.

    2 Judges should not take up political appointments after retirement. Eg Nihal Jaysinghe going to London as ambassador

    3 lawyers aligned to political parties should not be appointed to CoA or SC

  • 0
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    Independence is a state of mind. It’s ultimately the judges decision to lick ass or be independent. Nobody could make the judge do it either way.
    And a smart judge could lick ass and pretend that he acted independently. You can give independence to a judge but what if he wants to lick ass nevertheless?

    If there be a body to punish ass licker judges fine, Court of Appeal could punish lower court judges, Supreme Court could punish Court of Appeal judges but then who will punish Supreme Court judges?

    Legislation runs out here, because you can only make laws to protect independent judges. You simply cannot make laws to make a rotten judge independent.

  • 0
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    An excellent and informative article.

    When I reached ‘In some jurisdictions, they even took 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’ I could not but help think that this (and other sections of this article) could well be written with the continuing state of justice in this country, vide Basil Fernando’s https://www.colombotelegraph.com/index.php/the-rape-victim-who-got-hell-of-a-justice/

    I couldn’t help but smile wistfully when I read “The setting of the sun shall be the extreme limit of time within which a judge must render his decision”, and thinking, in Sri Lanka? That’ll be the day!

  • 1
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    I would be a little cautious when commenting on this fine essay.Nihal,grew up with that famous SC judge Justice T.S Fernando. G.L and Nihal are married to two sisters,both being daughters of the former President of the Senate Thomas Amarasuriya. G.L threw his weight with MaRa and see where he ended up.Similarly Nihal threw in his lot with Felix Dias in the 70s,and for a short spell he was Actg:AG. though not a Lawyer.But,I can vouch for one thing-Nihal is a Gentlemen to his fingertips.
    The moral of this is that,without Political patronage,however Brilliant one is,recognition is virtually impossible

    As for our Supreme Court,if there is one person who destroyed the traditions it is none other than Sarath Nanda Silva the TV Buddhist!.

  • 0
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    Political pressure was brought on the Judges after Independence for the first time when Felix Dias as Minister and Nihal Jayawickrema as Secretary. The extent to which they wielded power was reflected in the film ‘Sagarayak Meada’ by Gamini Fonseka that was a box office hit at that time. The doors to the Corrupt Judiciary of today was opened under them in the early ’70s.

  • 0
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    Speaking of Judicial Reform without dealing with the corrupt forces that have pervaded the Judiciary, is unproductive and is a waste of time.

    The Mafioso controlling the “Business” of Drugs, Alcohol, Prostitution, Criminality (rape, murder, extortion, and major crimes), and Banking & Finance, finance the Politicians. The President, Cabinet of Ministers, and Parliament is a corrupt behemoth that is the face of Governance, which runs the Government as dictated by the needs of the Mafioso.

    All Organs of Government including the Armed Services, Police, Administrative Service, and Judiciary are corrupt.

    In order to clean up the political system Sri Lanka needs a revolution: either bloody or constitutional. To be frank the most effective would be a French Revolution type change with guillotines fixed at major intersections, and about 500 politicians and equal number of prominent members of the Mafioso beheaded, as a deterent against future corruption and criminality.

    It will be interesting if CT readers who wish to comment suggest names of current politicians and Mafioso who qualify for the guillotine.

    If the civilians are educated sufficiently, at a future general election, a political party like the JVP, or political force thrown up by a popular movement, can gain a majority in Parliament and push through the required legislation to wipe out corruption.

    Legislation has then to be enacted to ensure that those who hold Office as (a) President, Prime Minister, Cabinet Minister, Member of Parliament, or (b) hold Office in any of the Organs of Government are held accountable to a very high standard. There will be laws, with offences unambiguously defined, and heavy punishments specified including death, and jail terms extending to 30 years, depending on the effect on society of the corrupt behavior. The standard of proof required in the trial of persons under category (a) shall be on a balance of probability for a period of three years from the date of commencement of the new system. This paragraph is not meant to draft legislation, but to highlight some ideas. This comment as a whole is intended to provoke people to start thinking.

    Unless the current politicians are done away with, Sri Lankan governance will continue to stink. People will continue to suffer without adequate food, education and health care. No blood: no change.

  • 1
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    Very timely needed discussion and presentation on the accountability and transparency of the Judiciary in Sri Lanka. Well-thoughtful measures for implementation which ought to be followed in all the court systems in Sri Lanka. Forgive my ignorance. But do we have an Independent Commission for Judiciary which has the regular auditing process, taking account of the inventory of cases and the conduct of judges and lawyers? Justice should be accessible and people friendly not an expensive and prolonged process.Dr.Nihal Jayawickrama, please bring out more ideas towards how justice can be a transparent process to masses, at least educate on the disparities/gaps between the written law and how it is being practiced, why among some who did the same crime, one is permitted to be on bail and other one is not? etc. Thanks.

  • 0
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    Navin.

    Agreed.Bribery and corruption should carry a death sentence; Only problem is those sprats like Traffic Policeman,Grama niladhari etc.
    It may be a little difficult to draw the line between a Mafioso and a Politician.
    Dumminda Silva and Johnston Fernando are examples where both are Politician and Mafioso!

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