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by Dato' Param Cumaraswamy

Dato’ Param Cumaraswamy

Speech delivered on October 17, 2003 at SLFI auditorium as part of the Constitutionalism Lecture Series organized by the International Centre for Ethnic Studies, Colombo. Param Cumaraswamy is a leading lawyer in Malaysia and former UN Special Rapporteur for Independence of the Judiciary and Judges.

Since the early eighties international non-government organisations of jurists have been involved in standard setting for the protection of judicial and lawyer independence.

They relentlessly pursued in creating universal awareness of the importance of an independent judiciary and the legal profession for the protection of the rule of law and realization of human rights for sustainable development in democracy.

These standards later became the basis of the UN Basic Principles on the Independence of the Judiciary and the Role of Lawyers endorsed by the UN General Assembly in 1985 and 1990 respectively. The Basic Principles on the Judiciary was a compromise bargain with the Eastern European States, then the Communist bloc, who vehemently rejected the original text. Rather than not having any standards at all, the original text was considerably diluted and adopted. In 1990 the 8th U.N. Congress on the Prevention of Crime and Treatment of Offenders in Havana, adopted the Guidelines on the Role of Prosecutors.

The continued pursuit of these organizations and the UN Standards were reflected in paragraph 27 of the Vienna Declaration and Programme of Action which reads: "Every State should provide an effective framework of remedies to redress human rights grievances or violations.

The administration of justice, including law enforcement and prosecutorial agencies and, especially an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realisation of human rights and indispensable to the processes of democracy and sustainable development...... "

177 nations assembled in Vienna adopted this Declaration. Practically all the sovereign States then in the Asia-Pacific region were present there.

Following the adoption of the Basic Principles on the Judiciary and the Role of Lawyers and the Vienna Declaration the international community felt the need to monitor attacks on the independence of judges and lawyers. Hence in 1994 the Commission created the mandate on the Independence of Judges & Lawyers. The mandate was three-pronged. It has an investigatory, advisory and standard setting elements.

Unlike the regions of Europe, the Americas and Africa where there are regional intergovernmental charters on human rights incorporating the principles of due process and providing for an independent judiciary to adjudicate the Asia-Pacific region has none. In Europe and the Americas there are also the regional courts on human rights.

However, the Asia Pacific region made history in 1995 when Chief Justices in the region gathered in Beijing for the 6th Conference of Chief Justices of Asia and the Pacific adopted the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region commonly known now as the 'Beijing Principles'. It was history because in no other region have the heads of the judiciaries got together and agreed to a common set of standards for the promotion and protection of their judicial institutions.

Moreover, that such consensus was reached in such a diverse region having different legal systems, leaving alone other differences, was a significant achievement. Such a document emerging from the hands of the eminent Chief Justices could carry greater weight than an intergovernmental document.

In dealing with European States the Council of Europe Standards are useful supplementary materials particularly the 1998 European Charter on the Statute for Judges. Though the 1998 Latimer House Guidelines on Parliamentary Supremacy and Judicial Independence is a welcome set of guidelines on good practice governing relations between Executive, Parliament and the Judiciary in the promotion of good governance, the rule of law and human rights in the Commonwealth yet technically the guidelines have not come into force as they have not been approved by the Commonwealth heads of governments.

It is not my intention today to analyze the various standards or even to discuss the traditional and often spoken of principles of judicial independence such as appointments, security of tenure, judicial salaries etc. There is already a wealth of materials on these principles. What I intend to do is to share some of my experiences in addressing concerns affecting judicial independence and in particular judicial accountability which is not addressed in the international and regional standards.

These concerns are:

i) Independence of judicial officers in the lower judiciary;

ii) The role of Chief Justices and Presidents of apex courts; iii) Abuse of judicial independence;

iv) The parameters of judicial accountability.

Independence of judicial officers in the lower judiciary

Very often principles of judicial independence are addressed to judges of the higher judiciary namely in the High Courts and the Appellate Courts.

These principles are not often addressed at the judaical officers like Magistrates, Session Judges or District Judges of the lower judiciary though a very large proportion of cases particularly criminal cases are tried and disposed of before these courts. The U.N. Basic Principles do not make any distinction between these two categories.

Though the word frequently used in the Basic Principles is 'judge' yet it should be read in the context of other terms like "independence of the judiciary" and "judicial officer". Neither does the Beijing Principles make such a distinction. National Constitutions provide for an independent judiciary. However, the fact remains that in many countries, particularly in the Commonwealth, judicial officers in the lower judiciary are not perceived as independent. Some of the insulations provided for the protection of the independence of the higher judiciary do not apply to these judicial officers.

This disparity is now gradually being challenged before the national courts. It was challenged before the Canadian Supreme Court in 1997, later, the Court of Appeal of Scotland in 1992 and the Supreme Court of Bangladesh in 2000 and the Constitutional Court of South Africa.

These decisions of the Apex Courts on this very vexed issue are most welcome. I hope they will be disseminated widely for other similar courts in other countries to follow or for governments to take necessary legislative measures to insulate these judicial officers with independence so that in their adjudicative process they are perceived by the consumers of justice as being independent and impartial.

The role of chief justices and presidents of the apex courts

Of late the position of Chief Justices or Presidents of Apex Courts have come under criticism in some countries. Complaints have been largely regarding abuse of power, interference with adjudicate processes of junior judges particularly those who await recommendations from the Chief Justice for promotions, etc. Chief Justices and Presidents are generally given the power to empanel sitting of the appellate courts. In such empanelment there have been allegations of 'fixing' in selective appeals.

The U.N. Basic Principles and the regional standards do not provide for standards for Chief Justices or Presidents though principle 6 of the Beijing Principles regarding interference in the decision-making process must necessarily apply to Chief Justices.

With regard to judicial appointments national constitutions which do not provide for an independent mechanism for selections and recommendations leave it to the Chief Justice to select and recommend. Similarly with regard to promotions. There have been allegations of favouritism, cronyism and nepotism. Recent cases decided by the Indian Supreme Court are in point.

The Indian constitution provides for the appointment of judges by the President after "consultation with the Chief Justice of India" in a 1993 case the court held that 'consultation' in the context must be genuine and not a sham. When there is a conflict between the opinion of the executive and that of the Chief Justice the opinion of the Chief Justice should prevail.

By this judicial interpretation, the Supreme Court in effect removed the power of judicial appointments from the executive and vested it in the Chief Justice.

Controversy thereafter arose whether the power can be vested in just one person like the Chief Justice or should it require consultation with a plurality of judges in the formation of the opinion of the Chief Justice.

In 1998 the President of India referred this and other doubts caused by the 1993 judgment back to a full bench of the Supreme Court without the Chief Justice.

In a detailed decision the Court held that "the primacy of the opinion of the Chief Justice of India in this context is, in effect, primacy of the opinion of the Chief Justice of India formed collectively, that is to say, after taking into account the views of his senior colleagues who are required to be consulted by him for the formation of his opinion".

To be continued

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