Independence of Judges and Lawyers

A legacy of diligent, thoughtful work

But the CHR has shown great reluctance to follow up on Mr Param Cumaraswamy’s recommendations

FOR his ninth and final year, the Malaysian Special Rapporteur, Mr Param Cumaraswamy, has submitted his annual report on the independence of judges and lawyers. This special procedure of the Commission was created in 1994, when the Commission adopted a resolution noting "both the increasing frequency of attacks on the independence of judges, lawyers and court officials and the link which exists between the weakening of safeguards for the judiciary and lawyers and the gravity and frequency of violations of human rights". Whilst this mantra has been adopted in each year's resolution since, this is not due to any failing by Mr Cumaraswamy as his work has been outstanding.

Mandate

Mr Cumaraswamy's mandate, contained in Commission resolution 1994/41, was threefold: (1) to inquire into and report on any substantial allegations received; (2) to identify and record attacks on the independence of the judiciary, lawyers and court officials, but also to report on progress achieved in protecting and enhancing their independence, and to make concrete recommendations including the provision of advisory services or technical assistance when requested; and, (3) to study, for the purpose of making proposals, important and topical questions of principle with a view to protecting and enhancing the independence of the judiciary and lawyers. He has used this broad mandate wisely and to good effect.

Methods of work

He started in his first report (1995) by outlining his working methods. He observed that the requirements of independent and impartial justice were universal and rooted in both natural and positive law. Based on the provisions of the Universal Declaration and the International Covenant on Civil and Political Rights, he identified basic standards, and noted that the broad interpretation of the concept of independence and impartiality of the judiciary has prevailed in the standard-setting work of the United Nations. He did not, therefore, intend to reinvent the wheel, but to try to help fix it and to improve it.

In doing so Mr Cumaraswamy has followed a genuine human rights approach. In his first speech to the Commission, on 10 February 1995, speaking on his future working methods, he said: "the right to an independent and impartial judiciary and an independent legal profession is not the right nor the prerogative of judges and lawyers. It is the right of the consumers of justice".

His 1995 report further stressed the unquestionable character of the principle of separation of powers, the need to clarify the criterion for independence (in particular with regards to military courts and revolutionary tribunals) and to specify the restrictions authorised (e.g. in periods of emergency) in order to prevent abuses of powers against the judiciary. Besides the examination of complaints and the urgent appeal mechanisms, the Rapporteur emphasised the importance of the UN programme for advisory services and technical assistance, and his work has worked towards providing the substance to strengthen these programmes.

Issues

Mr Cumaraswamy’s first report focused principally on issues of the separation of powers and on judicial review. In addition, however, he noted a wide range of areas of concern that are as relevant today as they were in 1995 - in some cases more so. Issues such as the relative lack of independence in military courts, the negative effects of states of emergency on the independence of the judiciary, the use of anti-terrorism measures leading to the creation of special courts, and the relationship between the media and the judiciary. In his subsequent reports, he addressed frankly and in detail a vast array of issues from both a country and a technical perspective. Most recently, on the 'war on terror', Mr Cumaraswamy expressed his concern "at its impact on the principles of due process, and urges the Commission to remind member States of their obligations under international law, in particular international human rights, refugee and humanitarian law".

It should also not be forgotten that Mr Cumaraswamy was a vocal supporter of the International Criminal Court (ICC) and paid close attention to the drafting of its procedures. In particular, he strongly criticised the deferral of investigation or prosecution provision in article 16, which provides that no investigation or prosecution may be commenced or proceeded with for a period of 12 months after the Security Council has adopted a resolution to that effect. In his 5th report (1999) to the Commission he said: "The political role of the Security Council in triggering the Court's investigation and prosecution powers, may, depending on how this role is played, substantially undermine the judicial independence of the Court by precluding judicial review of situations politically sensitive to one or other of the permanent members of the Council, who, of course, wield the power of veto." His concerns have already proved to be well founded, as the Security Council has brought article 16 into effect. In his latest report he notes "deep concern" at the US "unsigning" of the Rome Statute and attempting to obtain bilateral agreements with member States to prevent the ICC from proceeding against US personnel present in such States.

Standard-setting

Mr Cumaraswamy has closely monitored the standard-setting at regional and international levels which has attempted to address the problem issues facing the independence of judges and lawyers. His 2003 report states that the main source of concern is the increasing allegations of judicial corruption and calls for greater judicial accountability.

In his reports, he has shown concern over the proliferation of standards, and the need to bring together information on existing principles and standards to ensure that standards are uniform and consistent in order to avoid confusion. The culmination of his work on standards is therefore the submission of the 'Bangalore Principles of Judicial Conduct', prepared by eight Chief Justices from Africa and Asia.

In his first report he included a recommendation that the Centre for Human Rights publish a "fact sheet" on judicial independence and impartiality and the independence of the legal profession. In his 4th report (1998) he called for the drafting of a manual to assist in human rights training for judges and lawyers. This was one of the few incentives which the Commission has embraced by way of inclusion in a resolution. He "urges" the Commission to endorse the Bangalore Principles in this year's resolution.

Country visits, urgent appeals, communications

The Special Rapporteur has shown an enlightened approach in his focus on specific countries. The number of countries reported on during the past nine years is highly commendable. He has visited all continents, and has been careful not to discriminate between North and South or industrialised and developing states.

In 2002 he addressed 13 urgent appeals to Bangladesh, Central African Republic (2), Egypt, Italy (2), Nepal, Pakistan(2), South Africa, Syria and the UK (2). He transmitted 46 joint urgent appeals with other Special Rapporteurs and experts to Algeria, Argentina (2), Brazil (2), Colombia (2), Congo-DRC (4), Guatemala, Honduras, Iran (5), Israël (4), Liberia, Mexico (3), Nepal (3), Nicaragua, Nigeria (2), Sri Lanka, Sudan (2) Syria (2), Tunisia (2), Turkey, Uruguay, USA (4) and Uzbekistan.

He also transmitted 24 interventions to the governments of the following countries: Argentina, Belarus, Ecuador, Egypt, Equatorial Guinea, Guatemala, Iran, Italy, Libya, Mauritania, Nicaragua, Nigeria (3), Pakistan, Peru, Saudi Arabia, Spain (2), Sudan, Tunisia (2), Turkey and Zimbabwe. Joint interventions were also sent to Chad, the UK and the USA.

His comments with regard to specific countries have been appropriate to the context. The countries focused on in his latest report are typical of his approach. In 2002 Mr Cumaraswamy made country visits to Indonesia, Saudi Arabia and Italy. And at the initiative of the Ministry of Foreign Affairs, he also visited Timor-Leste to mediate between the government and the judges. Usually he has not pulled any punches, but he has also shown measured diplomacy and restraint to good effect. With regard to Indonesia, he reports that "corruption is not limited to the judiciary, instead it spreads like a cancer in the entire system" and urges drastic and urgent measures. Whereas with regard to Saudi Arabia, he considered more temperate language to be timely and appropriate. Whilst noting that the independence of the judiciary is given high priority, he reports that "certain structural conditions exist that could potentially undermine that independence".

Inevitably over the past nine years he has focused considerable attention on legal systems where judicial independence is threatened. This year the Rapporteur would have also liked to visit Cuba, Egypt, Pakistan, Sri Lanka, Turkey, Tunisia, Kenya and Equatorial Guinea, but he reports that no positive responses were received from those governments. However, in accordance with the second part of his mandate, he has also visited countries where positive attempts are being made to improve judicial independence, so that progress, as well as criticism, can be reported to the Commission to provide a fuller picture.

Let down by the Commission?

But has Mr Cumaraswamy's diligent work been let down by the Commission? NGOs have criticised the text of resolutions as lacking in substance and not embracing the issues or recommendations raised by the SR. It is often a forensic exercise tracking the subtle changes of wording in Commission resolutions from one year to the next. But this has been particularly the case for this special procedure, for which the Commission has shown great reluctance to convert the "concrete recommendations" proposed, in accordance with the mandate, into the commitment of resolution wordings. Last year it was encouraging to see resolution 2002/37 on the 'integrity of the judicial system' incorporated into the existing mandate - although the 19 abstentions are of some concern, in particular as resolutions on the existing mandate have in the past nine years all been by consensus.

It should, however, be uncontroversial to suggest that the mandate for this special procedure will be renewed. Mr Cumaraswamy has fulfilled his mandate. He has inquired and reported with integrity, thoroughness and timeliness on the allegations he has received. He has reported on progress, and made "concrete recommendations" and proposals to protect and enhance the independence of judges and lawyers. However, worldwide the independence of the judicary and lawyers is as threatened as ever and there are challenging times ahead. His final report highlights some specific problem areas. Judicial accountability and increasing allegations of judicial corruption, measures taken in response to 9/11, the problems of countries in transition, and the needs for more resources to fulfil the mandate, are all areas that the outgoing Special Rapporteur considers merit close attention. Resolving these problems is, however, the role of states. Mr Cumaraswamy has fulfilled his role in leaving behind a sound legacy of work for his replacement to inherit, whoever that may be.

If Mr Cumaraswamy's admirable work is to have a lasting impact it will perhaps be in disseminating the greater awareness of minimum standards and principles. The submission of the Bangalore Principles is his final attempt to do this and deserves serious consideration by the Commission. Mr Cumaraswamy has done his very best to fulfil his mandate in good faith, and it is to be hoped that the Commission this year will follow suit by endorsing his recommendations, in particular the Bangalore Principles, in a resolution.