By Gabriela Knaul –
Making Commonwealth values a reality: the rule of law and independence of the legal profession
Presentation of the United Nations Special Rapporteur on the Independence of Judges and Lawyers – Gabriela Knaul
Ladies and Gentlemen,
Allow me to begin this brief presentation by expressing my sincere gratitude to the International Bar Association’s Human Rights Institute and the International Commission of Jurists for inviting me to participate to this press conference. I am honoured to have the opportunity to share some thoughts on how to promote the rule of law and the independence of the judiciary and the legal profession.
As you well know, the independence of the judiciary finds its origin in the principle of the separation of powers, according to which the State is divided into branches – the legislature, the executive and the judiciary – each with separate and independent powers and areas of responsibility so that the powers of one branch are not in conflict with the powers associated with the other branches. This separation of powers enables a system of mutual checks and balances aimed at ensuring the integrity of the roles of each branch and at preventing abuses of power to the detriment of a free society.
The judiciary plays an essential part in this system. It serves as an essential safeguard against breaches to the law committed by the other branches of the State, in particular the executive power, and plays an important role in ensuring that the law applies equally to everyone. Institutional independence requires the judiciary to be institutionally separated from the other branches of power, and to be autonomous and independent in its functioning and in the decision of internal matters.
Yet, the role of the judiciary goes beyond the system of checks and balances. Indeed, as the implementation of all rights ultimately depends upon the proper administration of justice, the judiciary also plays a significant function in guaranteeing the delivery of justice, in controlling the constitutionality of laws and their compliance with internationally recognized human rights and fundamental freedoms. A competent, independent and impartial judiciary is, thus, essential if judicial actors are to fulfill their role in upholding the rule of law.
The rule of law is a comprehensive concept that includes crucial elements of the mandate of the United Nations Special Rapporteur on the independence of judges and lawyers.
The rule of law is also at the heart of the principles promoted by the United Nations. As formulated in 2004 by the United Nations Secretary General, the rule of law can be defined as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.”
I believe the major prerequisite to establishing the rule of law lies in building and strengthening confidence in the justice system. Fighting impunity and ensuring accountability by bringing to justice the perpetrators of human rights violations is a paramount step in this direction. Hence, judicial independence, which must be guaranteed by the State at the highest possible level, and possibly enshrined in the Constitution, is an essential precondition to the rule of law.
Ladies and Gentlemen,
The importance of judicial independence is expressed in Article 10 of the Universal Declaration of Human Rights and Article 14 of the International Covenant on Civil and Political Rights. It is also emphasized in many regional instruments, such as Article 6 of the European Convention on Human Rights, Article 8 of the American Convention on Human Rights and Article 7 of the African Charter on Human and Peoples’ Rights.
The requirements for an independent judiciary are also detailed in other international and regional documents, such as the Basic Principles on the Independence of the Judiciary, endorsed by the United Nations General Assembly in 1985, and the Bangalore Principles of Judicial Conduct, adopted in The Hague in 2002.
Let me take this opportunity to highlight the great contribution made by the Commonwealth Parliamentary Association and the legal profession of the Commonwealth represented by the Commonwealth Magistrates’ and Judges’ Association, the Commonwealth Lawyers Association and the Commonwealth Legal Education Association, to the adoption of the Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence, and the endorsement of the Commonwealth Principles on the Accountability of and the Relationship between the Three Branches of Government. The Latimer House Principles represent a good example of a document that can be implemented to strengthen the fundamental principle of separation of powers in the Member States of the Commonwealth.
Through my work as United Nations Special Rapporteur I have analyzed several aspects related to the structure and functioning of the judicial system and of the legal profession and their impact on the enjoyment of human rights. This encompassed looking at a very wide range of issues, such as corruption, fair and equal access to legal proceedings, the financial autonomy and independence of the judiciary, training and education of judicial actors, the appointment and removal of judges, the independence of the legal profession, among others.
As can be verified from the communications reports of Special Procedures, my mandate has witnessed different cases of improper external interference and attacks against the judiciary, but also cases of lack of respect between the three main actors of the justice system – judges, lawyers and prosecutors – regarding the respective role that each has to play in complying with international standards.
All States encounter challenges when it comes to upholding the rule of law and guaranteeing the independence of the judiciary, but States which have gone through crises are confronted with further difficulties when it comes to grasping the fundamental concepts and values that form the foundation of democracy.
Particularly in times of crisis, States should pay the utmost vigilance to ensure the maintenance of a number of principles enshrined in international instruments and upheld by my mandate, such as the separation of powers, the effective administration of justice, the right to a fair trial by an independent and impartial tribunal, the security of tenure of judges, and the protection of judges and legal professionals from threats, pressure or interference.
In this sense, I commend the Commonwealth for the adoption, in March 2013, of the Commonwealth Charter, which is aimed at promoting the objectives of democracy and human rights, good governance and progress through technical assistance, capacity building and practical cooperation in promoting development of Member States.
This Charter is particularly important as it demonstrates that, in order to ensure stability, democracy, the rule of law and the separation of powers must be upheld through measures that promote human rights, solidify state institutions, fight corruption and ensure accountability.
In this view, I believe cooperation among States and international organizations is crucial to help States exchange information and best practices so that they can jointly face challenges to democracy and find solutions to promote and protect human rights. Dialogue, interaction and collaboration between different stakeholders, including between the judicial actors themselves, is also essential to ensure the full respect for democratic principles and the rule of law.
Ladies and Gentlemen,
It is important to bear in mind that all the actors of the judicial system have a significant weight of responsibility and importance in enforcing the rule of law and in vouching that all activities of the judiciary are developed with transparency, property and justice. Like judges, prosecutors and lawyers are also vital agents of the administration and delivery of justice and, as such, should respect and protect human dignity and human rights, thus contributing to ensuring the smooth functioning of the justice system.
The importance of ensuring the independence of judges lies in both its individual and institutional aspects. In this light, due regard should be paid to the impartiality of judges, the strengthening of structures and procedures within the justice system, and a fair and transparent administration of justice provided with adequate resources. The United Nations Basic Principles on the Independence of the Judiciary establish the essential elements that States should put in place for shaping a truly independent and effective justice system.
I would like to further stress that, while lawyers are not expected to be impartial in the same way as judges, they must be as free from external pressures and interferences as judges are. When guarantees are not in place to enable lawyers to discharge their duties in an independent manner, the door is open to all sorts of pressure and interference, whether from private or public actors, who seek to have an impact on or control over judicial proceedings. Thus, if the rule of law and the justice system are to truly function, it is paramount to develop the independence of lawyers.
To this effect, the Basic Principles on the Role of Lawyers, adopted in 1990 by the 8th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, ascertain that lawyers are essential agents of the administration of justice. The Basic Principles furthermore state that, in protecting the rights of their clients and in promoting the cause of justice, lawyers shall seek to uphold human rights and fundamental freedoms recognized by national and international law, and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.
It is relevant to underscore, in this context, that lawyers, like all other citizens, are entitled to freedom of expression and association, in particular, they have the right to take part in public discussions concerning the law, the administration of justice, and the protection and promotion of human rights, without suffering professional restrictions.
Through my mandate I have acknowledged worrisome cases of recurrent threats and interferences in the work of legal professionals. Besides threats and undue pressure, lawyers are frequently identified with their clients or their clients’ causes as a result of discharging their functions. In order to avoid these practices and guarantee that legal professionals are able to perform their professional functions without intimidation, hindrance, harassment or improper interference, authorities must place the independence of lawyers and bar associations at the center of the constitutional and legal goals. In this regard, I call that due respect be ensured to the incorporation of the provisions of the United Nations Basic Principles on the Role of Lawyers into domestic legislation and practice.
I would like to express my serious concerns about acts of reprisals against judges, prosecutors, lawyers and other actors of the judicial system who cooperate, or seek to cooperate, with UN and regional human rights mechanism, including by implementing decisions taken by those mechanisms.
Reprisals against judicial actors and legal professionals are a kind of attack to their institutional and functional independence. Reprisals must be investigated, prosecuted and perpetrators punished as a means to guarantee the independence of judges and magistrates and the free exercise of the legal profession.
Let me conclude by ascertaining that while many challenges still lie ahead for the concretization of democracy, human rights and the rule of law, we must all acknowledge that the independence of the judiciary and the free exercise of the legal profession are key elements for the achievement of these values.
By understanding the role of the Legislature, the Executive and the Judiciary and their respective weight of responsibility, I believe that efforts can be joined for the promotion and protection of human rights and for the continuous strengthening of democracy and the rule of law.
Thank you for your attention.
 UN. Doc. S/2004/616, para. 6.