03] Commentary on the Bangalore Principles of Judicial Conduct.pdf
High Lights
COMMENTARY ON THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT:
THE JUDICIAL INTEGRITY GROUP . March 2007
……………………………………………………………………………………
PREFACE
A judiciary of undisputed integrity is the bedrock institution essential for
ensuring compliance with democracy and the rule of law. Even when all other
protections fail, it provides a bulwark to the public against any encroachments on its
rights and freedoms under the law.
These observations apply both domestically within the context of each nation
State and globally, viewing the global judiciary as one great bastion of the rule of law
throughout the world. Ensuring the integrity of the global judiciary is thus a task to
which much energy, skill and experience must be devoted.
This is precisely what the Judicial Group on Strengthening Judicial Integrity
(The Judicial Integrity Group) has sought to do since it set out on this task in 2000.
Not only have some States adopted the Bangalore Principles but others have
modelled their own Principles of Judicial Conduct on them. International
organisations have also looked at it with favour and given it their endorsement. The
United Nations Social and Economic Council, by resolution 2006/ 23, has invited
member States consistent with their domestic legal systems to encourage their
judiciaries to take into consideration the Bangalore Principles of Judicial Conduct
when reviewing or developing rules with respect to the professional and ethical
conduct of the members of the judiciary. The United Nations Office on Drugs and
Crime has actively supported it and it has also received recognition from bodies such
as the American Bar Association and the International Commission of Jurists. The
judges of the member States of the Council of Europe have also given it their
favourable consideration.
At these meetings the Bangalore Principles and the Commentary as amended
have been adopted, thereby giving them increased weight and authority. The
Commentary has given depth and strength to the Principles. In the result, we now
have a widely accepted and carefully researched set of Principles with a Commentary
thereon which has considerably advanced the Principles along the road towards their
global adoption as a Universal Declaration of Judicial Ethics.
It needs to be noted also that just as all traditional systems of law are
unanimous in their insistence on the highest standards of judicial rectitude, so also do
all the great religious systems of the world endorse this principle in all its integrity. In
recognition of this, the Commentary also contains, in the appendix, a brief outline of
religious teachings on the subject of judicial integrity.
We have in the Bangalore Principles an instrument of great potential value not
only for the judiciaries but also for the general public of all nations and for all who are
concerned with laying firm foundations for a global judiciary of unimpeachable
integrity.
C G WEERAMANTRY
Chairperson
Judicial Integrity Group
…………………………………………………………………………………………….
The Bangalore Draft Code of Judicial Conduct. …….. Page 12
The second meeting of the Judicial Integrity Group was held in Bangalore, India, on 24, 25 and 26 February 2001. It was facilitated by the Department for International Development (DfID), United Kingdom, hosted by the High Court and the
Government of Karnataka State, India, and supported by the United Nations High Commissioner for Human Rights. At this meeting the Group, proceeding by way of examination of the draft placed before it, identified the core values, formulated the
relevant principles, and agreed on the Bangalore Draft Code of Judicial Conduct (the
Bangalore Draft). The Group recognized, however, that since the Bangalore Draft had
been developed by judges drawn principally from common law countries, it was
essential that it be scrutinized by judges of other legal traditions to enable it to assume
the status of a duly authenticated international code of judicial conduct.
This meeting was attended by Chief Justice Mainur Reza Chowdhury of Bangladesh, Chief Justice P.V. Reddi of Karnataka State in India, Chief Justice Keshav Prasad Upadhyay of Nepal, Chief Justice M.L. Uwais of Nigeria, Deputy Chief Justice Pius Langa of South Africa, Chief Justice S.N. Silva of Sri Lanka, Chief Justice B.A.
Samatta of Tanzania, and Chief Justice B.J. Odoki of Uganda. Justice Claire
L’Heureux Dube of the Supreme Court of Canada, President of the International
Commission of Jurists, was a special invitee. Judge Weeramantry served as
chairperson, and Justice Kirby as Rapporteur. In addition, the UN Special Rapporteur
on the Independence of Judges and Lawyers, Dato Param Cumaraswamy, and the
Chairman of the UN Human Rights Committee, Justice P.N. Bhagwati, participated as Observers, the latter representing the United Nations High Commissioner for Human Rights.
…………………………………………………………………….
Commission on Human Rights . . Page 15
The Bangalore Principles of Judicial Conduct were annexed to the report presented to
the 59th Session of the United Nations Commission on Human Rights in April 2003
by the United Nations Special Rapporteur on the Independence of Judges and
Lawyers, Dato Param Cumaraswamy. On 29 April 2003, the Commission, by a
resolution adopted without dissent, noted the Bangalore Principles of Judicial
Conduct and brought those Principles “to the attention of Member States, the relevant
United Nations organs and intergovernmental and non-governmental organizations for
their consideration” [1 Commission on Human Rights resolution 2003/43. 16 ]
In April 2004, in his report to the Sixtieth session of the Commission on Human
Rights, the new UN Special Rapporteur on the Independence of Judges and Lawyers,
Dr Leandro Despouy, noted that:
The Commission has frequently expressed concern over the frequency and
the extent of the phenomenon of corruption within the judiciary throughout
the world, which goes far beyond economic corruption in the form of
embezzlement of funds allocated to the judiciary by Parliament or bribes (a
practice that may in fact be encouraged by the low salaries of judges). It
may also concern administration within the judiciary (lack of transparency,
system of bribes) or take the form of biased participation in trials and
judgments as a result of the politicisation of the judiciary, the party loyalties
of judges or all types of judicial patronage. This is particularly serious in
that judges and judicial officials are supposed to be a moral authority and a
reliable and impartial institution to whom all of society can turn when its
rights are violated.
Looking beyond the acts themselves, the fact that the public in
some countries tends to view the judiciary as a corrupt authority is
particularly serious: a lack of trust in justice is lethal for democracy and
development and encourages the perpetuation of corruption. Here, the rules
of judicial ethics take on major importance. As the case law of the European
Court of Human Rights stresses, judges must not only meet objective criteria
of impartiality but must also be seen to be impartial; what is at stake is the
trust that the courts must
inspire in those who are brought before them in a democratic society. Thus
one can see why it is so important to disseminate and implement the Bangalore
Principles of Judicial Conduct, whose authorshave taken care to base themselves
on the two main legal traditions(customary law and civil law) and which the
Commission noted at its fiftyninth session.
The Special Rapporteur recommended that the Bangalore Principles be made
available, preferably in national languages, in all law faculties and professional
associations of judges and lawyers.
………………………………………………………………………….
Commentary on the Bangalore Principles of Judicial Conduct . . Page 16
At its fourth meeting held in Vienna in October 2005, the Judicial Integrity Group
noted that, at several meetings of judges and lawyers as well as of law reformers, the
need for a commentary or an explanatory memorandum in the form of an authoritative
guide to the application of the Bangalore Principles had been stressed. The Group
agreed that such a commentary or guide would enable judges and teachers of judicial
ethics to understand not only the drafting and cross-cultural consultation process of
the Bangalore Principles and the rationale for the values and principles incorporated
in it, but would also facilitate a wider understanding of the applicability of those
values and principles to issues, situations and problems that might arise or emerge.
Accordingly, the Group decided that, in the first instance, the Coordinator would
prepare a draft commentary, which would then be submitted for consideration and
approval by the Group.
…………………………………………………………………………….
Commission on Crime Prevention and Criminal Justice .. Pages 16-17
In April 2006, the fifteenth Session of the Commission on Crime Prevention and
Criminal Justice, meeting in Vienna, in a resolution co-sponsored by the Governments
of Egypt, France, Germany, Nigeria and the Philippines entitled ‘Strengthening basic
principles of judicial conduct’ and adopted without dissent, recommended that the
Economic and Social Council of the United Nations, inter alia,
(a) invite Member States, consistent with their domestic legal systems, to
encourage their judiciaries to take into consideration the Bangalore Principles
of Judicial Conduct (which were annexed to the resolution) when reviewing or
developing rules with respect to the professional and ethical conduct of
members of the judiciary;
(b) emphasize that the Bangalore Principles of Judicial Conduct represent a
further development and are complementary to the Basic Principles on the
Independence of the Judiciary;
(c) acknowledge the important work carried out by the Judicial Integrity Group
under the auspices of the United Nations Office on Drugs and Crime
(UNODC), as well as other international and regional judicial forums that
contribute to the development and dissemination of standards and measures to
strengthen judicial independence, impartiality and integrity;
(d) request the UNODC to continue to support the work of the Judicial Integrity
Group;
(e) express appreciation to Member States that have made voluntary contributions
to the UNODC in support of the work of the Judicial Integrity Group;
(f) invite Member States to make voluntary contributions, as appropriate, to the
United Nations Crime Prevention and Criminal Justice Fund to support the
work of the Judicial Integrity Group, and to continue to provide, through the
Global Programme against Corruption, technical assistance to developing
countries and countries with economies in transition, upon request, to
strengthen the integrity and capacity of their judiciaries;
(g) invite Member States to submit to the Secretary-General their views regarding
the Bangalore Principles of Judicial Conduct and to suggest revisions, as
appropriate;
(h) request the UNODC to convene an open-ended intergovernmental expert
group, in cooperation with the Judicial Integrity Group and other international
and regional judicial forums, to develop a commentary on the Bangalore
Principles of Judicial Conduct, taking into account the views expressed and
the revisions suggested by Member States; and
(i) request the Secretary-General to report to the Commission on Crime
Prevention and Criminal Justice at its sixteenth session on the implementation
of this resolution.
Economic and Social Council
In July 2006, the United Nations Economic and Social Council adopted the above
resolution without a vote. 2 [2= 2 ECOSOC 2006/23.]
……………………………………………………………………….. ……………………..
Preamble ………………………….. Page 19
WHEREAS the Universal Declaration of Human Rights recognizes as
fundamental the principle that everyone is entitled in full equality to a fair and
public hearing by an independent and impartial tribunal, in the determination of
rights and obligations and of any criminal charge.
Commentary
Universal Declaration of Human Rights
1. Article 19 of the Universal Declaration of Human Rights (UDHR), which was
proclaimed by the United Nations General Assembly on 10 December 1948, provides
that:
Everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of his rights and
obligations and of any criminal charge against him.
2. The UDHR was adopted without a dissenting vote, and represents ‘a common
understanding’ of those rights which the member states of the United Nations had
pledged in the Charter of the United Nations to respect and to observe. It is the first
comprehensive statement of human rights of universal applicability. The UDHR was
not in itself intended to be a legally binding instrument; it is a declaration, not a treaty.
However, it is regarded as the legitimate aid to the interpretation of the expression
‘human rights and fundamental freedoms’ in the Charter. Indeed, as early as 1971, it
was judicially recognized that ‘although the affirmations in the Declaration are not
binding qua international convention . . . they can bind the states on the basis of
custom . . . whether because they constituted a codification of customary law . . . or
because they have acquired the force of custom through a general practice accepted as
law.’3 [ 3 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West
Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1971, separate opinion of
Vice-President Ammoun, at 76.]
WHEREAS the International Covenant on Civil and Political Rights guarantees
that all persons shall be equal before the courts, and that in the determination of
any criminal charge or of rights and obligations in a suit at law, everyone shall
be entitled, without undue delay, to a fair and public hearing by a competent,
independent and impartial tribunal established by law.
Commentary
International Covenant on Civil and Political Rights
3. Article 14(1) of the International Covenant on Civil and Political Rights
(ICCPR) states, inter alia, that:
All persons shall be equal before the courts and tribunals. In the
determination of any criminal charge against him, or of his rights and
obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by
law.
4. The ICCPR was adopted unanimously by the United Nations General
Assembly on 16 December 1966, and came into force on 23 March 1976, three
months after the deposit of the thirty-fifth instrument of ratification. As on 8 May
2006, 156 states had either ratified or acceded to it, thereby accepting its provisions as
binding obligations under international law.
State obligations
5. When a state ratifies or accedes to the ICCPR, it undertakes three domestic
obligations. The first is ‘to respect and to ensure to all individuals within its territory
and subject to its jurisdiction’ the rights recognized in the ICCPR, ‘without
discrimination of any kind, such as race, colour, sex, language religion, political or
other opinion, national or social origin, property, birth or other status’. The second is
to take the necessary steps, in accordance with its constitutional processes and with
the provisions of the ICCPR, to adopt such legislative measures as may be necessary
to give effect to these rights and freedoms. The third is to ensure that any person
whose rights or freedoms are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official capacity; to
ensure that any person claiming such a remedy shall have his rights thereto
determined by competent judicial, administrative or legislative authorities, or by the
legal system, and to develop the possibilities of judicial review; and to ensure that the
competent authorities shall enforce such remedies when granted.
WHEREAS the foregoing fundamental principles and rights are also recognized
or reflected in regional human rights instruments, in domestic constitutional,
statutory and common law, and in judicial conventions and traditions.
WHEREAS the importance of a competent, independent and impartial
judiciary to the protection of human rights is given emphasis by the fact that
the implementation of all the other rights ultimately depends upon the
proper administration of justice.
WHEREAS a competent, independent and impartial judiciary is likewise
essential if the courts are to fulfill their role in upholding constitutionalism and
the rule of law.
Commentary
Constitutionalism
10. The concept of constitutionalism has been explained in the following terms:
The idea of constitutionalism involves the proposition that the exercise of
governmental power shall be bounded by rules, rules prescribing the
procedure according to which legislative and executive acts are to be
performed and delimiting their permissible content. Constitutionalism
becomes a living reality to the extent that these rules curb the arbitrariness
of discretion and are in fact observed by the wielders of political power, and
to the extent that within the forbidden zones upon which authority may not
trespass there is significant room for the enjoyment of individual liberty.4
Rule of Law
11. The relevance of an independent and impartial judiciary in upholding the rule
of law has been articulated thus:
The reason why judicial independence is of such public importance is that a
free society exists only so long as it is governed by the rule of law . . . the
rule which binds the governors and the governed, administered impartially
and treating equally all those who seek its remedies or against whom its
remedies are sought. However vaguely it may be perceived, however
inarticulated may be the thought, there is an aspiration in the hearts of all
men and women for the rule of law. That aspiration depends for its
fulfilment on the competent and impartial application of the law by judges.
In order to discharge that responsibility, it is essential that judges be, and be
seen to be, independent. We have become accustomed to the notion that
judicial independence includes independence from the dictates of Executive
Government. . . But modern decisions are so varied and important that
independence must be predicated of any influence that might tend, or be
thought reasonably to tend, to a want of impartiality in decision making.
[4 S.A. de Smith, The New Commonwealth and its Constitutions, London, Stevens, 1964, p.106.]
Independence of the Executive Government is central to the notion, but it is
no longer the only independence that is relevant.5 [5 Sir Gerard Brennan, Chief Justice of Australia, ‘Judicial Independence’, The Australian Judicial Conference, 2 November 1996, Canberra, www.hcourt.gov.au ]
Independent and Impartial Judiciary
12. The concept of an independent and impartial judiciary is now broader in
scope:
Any mention of judicial independence must eventually prompt the question:
independent of what? The most obvious answer is, of course, independent of
government. I find it impossible to think of any way in which judges, in their
decision-making role, should not be independent of government. But they
should also be independent of the legislature, save in its law-making
capacity. Judges should not defer to expressions of parliamentary opinion,
or decide cases with a view to either earning parliamentary approbation or
avoiding parliamentary censure. They must also, plainly, ensure that their
impartiality is not undermined by any other association, whether
professional, commercial, personal or whatever.6 [ 6 Lord Bingham of Cornhill, Lord Chief Justice of England, ‘Judicial Independence’, Judicial StudiesBoard Annual Lecture 1996, www.jsboard.co.uk. ]
WHEREAS public confidence in the judicial system and in the moral authority
and integrity of the judiciary is of the utmost importance in a modern
democratic society.
Commentary
Public confidence in the judiciary
13. It is public confidence in the independence of the courts, the integrity of its
judges, and in the impartiality and efficiency of its processes that sustain the judicial
system of a country. As has been observed by a judge:
The Court’s authority . . . possessed of neither the purse nor the sword . . .
ultimately rests on sustained public confidence in its moral sanction. Such
feeling must be nourished by the Court’s complete detachment, in fact and in
appearance, from political entanglements and by abstention from injecting
itself into the clash of political forces in political settlements.7 [7 Baker v. Carr, Supreme Court of the United States, (1962) 369 US 186, per Frankfurter J.]
WHEREAS it is essential that judges, individually and collectively, respect and
honour judicial office as a public trust and strive to enhance and maintain
confidence in the judicial system.
Commentary
Collective responsibility
14. A judge must consider it his or her duty not only to observe high standards of
conduct, but also to participate in collectively establishing, maintaining and upholding
those standards. Even one instance of judicial misconduct may irreparably damage the
moral authority of the court.
The judicial office
15. The following remarks were once addressed by a Chief Justice to newlyappointed
judges in his jurisdiction:
A judge’s role is to serve the community in the pivotal role of administering
justice according to law. Your office gives you that opportunity and that is a
privilege. Your office requires you to serve, and that is a duty. No doubt
there were a number of other reasons, personal and professional, for
accepting appointment, but the judge will not succeed and will not find
satisfaction in his or her duties unless there is continual realization of the
importance of the community service that is rendered. Freedom, peace,
order and good government – the essentials of the society we treasure –
depend in the ultimate analysis on the faithful performance of judicial duty.
It is only when the community has confidence in the integrity and capacity of
the judiciary that the community is governed by the rule of law. Knowing
this, you must have a high conceit of the importance of your office. When the
work loses its novelty, when the case load resembles the burdens of
Sisyphus, when the tyranny of reserved judgments palls, the only
permanently sustaining motivation to strive onwards is in the realization
that what you are called on to do is essential to the society in which you live.
You are privileged to discharge the responsibilities of office and you are
obliged to leave it unsullied when the time comes to lay it down. What you
say and what you do, in public and to some extent, in private, will affect the
public appreciation of your office and the respect which it ought to
command. The running of the risk of being arrested while driving home from
a dinner party or a minor understatement of income in a tax return could
have public significance. The standards of Caesar’s wife are the standards
that others will rightly apply to what you say and do and, having a high
conceit of your judicial office, they are the standards you will apply to
yourself. These standards apply to matters great and small. In some
respects, the management of petty cash or the acquittal of expenditure can
be a matter of great moment.
Hand in hand with a high conceit of the office is a humility about one’s
capacity to live up to the standards set by one’s predecessors and expected
of the present incumbent. There are few judges who are sufficiently self-confident
not to entertain a doubt about their ability to achieve the expected
level of performance – and, so far as I know, none of those possessed of that
self-confidence has done so. Of course, with growing experience the anxiety
about one’s capacity to perform the duties of office abates. But this is not
attributable so much to self-satisfaction as it is to a realistic acceptance of
the limits of one’s capacity. Provided one does one’s best, anxiety about any
shortfall in capacity can be counter-productive. Intellectual humility (even if
it does not show), a sense of duty and self-esteem, the exposure of every step
in the judicial process to public examination and peer group pressure are
the factors which inspire a judge to the best achievement of which he or she
is capable.
. . . . . . You have joined or you are joining that elite – an elite of service,
not of social grandeur – and your membership of it can be a source of great
personal satisfaction and no little pride. You will not grow affluent on the
remuneration that you will receive; you will work harder and longer than
most of your non-judicial friends; your every judicial word and action and
some other words and actions as well will be open to public criticism and
the public esteem of the judiciary may be eroded by attacks that are both
unjustified and unanswered. But if, at the end of the day, you share with my
colleagues whom you highly esteem a sense of service to the community by
administering justice according to law, you will have a life of enormous
satisfaction. Be of good and honourable heart, and all will be well.8 [8 Sir Gerard Brennan, Chief Justice of Australia, addressing the National Judicial Orientation Programme, Wollongong, Australia, 13 October 1996. The full text of the speech is available at http://www.hcourt.gov.au.]
WHEREAS the primary responsibility for the promotion and maintenance of
high standards of judicial conduct lies with the judiciary in each country.
Commentary
Drafting a code of judicial conduct
16. It is desirable that any code of conduct or like expression of principles for the
judiciary should be formulated by the judiciary itself. That would be consistent with
the principle of judicial independence and with the separation of powers. For instance,
in many countries, the legislature and the executive regulate how their members are
expected to behave and what their ethical duties are. It would be appropriate for the
judiciary to do the same. If the judiciary fails or neglects to assume responsibility for
ensuring that its members maintain the high standards of judicial conduct expected of
them, public opinion and political expediency may lead the other two branches of
government to intervene. When that happens, the principle of judicial independence
upon which the judiciary is founded and by which it is sustained, is likely to be
undermined to some degree, perhaps seriously.
……………………………………………………………………….
AND WHEREAS the United Nations Basic Principles on the Independence of the
Judiciary are designed to secure and promote the independence of the judiciary,
and are addressed primarily to States……. …. Page 29
Judiciary are designed to secure and promote the independence of the judiciary,
and are addressed primarily to States.
Commentary
UN Basic Principles on the Independence of the Judiciary
17. The United Nations Basic Principles on the Independence of the Judiciary
were adopted by the 7th UN Congress on the Prevention of Crime and the Treatment
of Offenders in September 1985 in Milan, and ‘endorsed’ by the United Nations
General Assembly in November 1985.9 [9 S/RES/40/32 of 29 November 1985. ]
In the following month, the General
Assembly ‘welcomed’ the Principles and invited governments ‘to respect them and to
take them into account within the framework of their national legislation and
practice’.10 [10 A/RES/40/146 of 13 December 1985.]
The Basic Principles, which were ‘formulated to assist Member States in
their task of securing and promoting the independence of the judiciary’ are the
following:
INDEPENDENCE OF THE JUDICIARY
1. The independence of the judiciary shall be guaranteed by the State and
enshrined in the Constitution or the laws of the country. It is the duty of all
governments and other institutions to respect and observe the independence of the
judiciary.
2. The judiciary shall decide matters before it impartially, on the basis of
facts and in accordance with the law, without any restrictions, improper
influences, inducements, pressures, threats or interferences, direct or indirect,
from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and
shall have exclusive authority to decide whether an issue submitted for its decision
is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the
judicial process, nor shall judicial decisions by the courts be subject to revision.
This principle is without prejudice to judicial review or to mitigation or
commutation by competent authorities of sentences imposed by the judiciary, in
accordance with the law.
5. Everyone shall have the right to be tried by ordinary courts or tribunals
using established procedures. Tribunals that do not use the duly established
procedures of the legal process shall not be created to displace the jurisdiction
belonging to the ordinary courts or judicial tribunals.
6. The principle of the independence of the judiciary entitles and requires the
judiciary to ensure that judicial proceedings are conducted fairly and that the
rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to
enable the judiciary to properly perform its functions.
FREEDOM OF EXPRESSION AND ASSOCIATION
8. In accordance with the Universal Declaration of Human Rights, members
of the judiciary are like other citizens entitled to freedom of expression, belief,
association and assembly, provided, however, that in exercising such rights,
judges shall always conduct themselves in such a manner as to preserve the
dignity of their office and the impartiality and independence of the judiciary.
9. Judges shall be free to form and join associations of judges or other
organizations to represent their interests, to promote their professional training
and to protect their judicial independence.
QUALIFICATIONS, SELECTION AND TRAINING
10. Persons selected for judicial office shall be individuals of integrity and
ability with appropriate training or qualifications in law. Any method of judicial
selection shall safeguard against judicial appointments for improper motives. In
the selection of judges, there shall be no discrimination against a person on the
grounds of race, colour, sex, religion, political or other opinion, national or social
origin, property, birth or status, except that a requirement that a candidate for
judicial office must be a national of the country concerned shall not be considered
discriminatory.
11. The terms of office of judges, their independence, security, adequate
remuneration, conditions of service, pensions and the age of retirement shall be
adequately secured by law.
12. Judges, whether appointed or elected, shall have guaranteed tenure until a
mandatory retirement age or the expiry of their terms of office, where such exists.
13. Promotion of judges, wherever such a system exists, should be based on
objective factors, in particular ability, integrity and experience.
14. The assignment of cases to judges within the court to which they belong is
an internal matter of judicial administration.
PROFESSIONAL SECRECY AND IMMUNITY
15. The judiciary shall be bound by professional secrecy with regard to their
deliberations and to confidential information acquired in the course of their duties
other than in public proceedings, and shall not be compelled to testify on such
matters.
16. Without prejudice to any disciplinary procedure or to any right of appeal
or to compensation from the State, in accordance with national law, judges should
enjoy personal immunity from civil suits for monetary damages for improper acts
or omissions in the exercise of their judicial functions.
DISCIPLINE, SUSPENSION AND REMOVAL
17. A charge or complaint made against a judge in his/her judicial and
professional capacity shall be processed expeditiously and fairly under an
appropriate procedure. The judge shall have the right to a fair hearing. The
examination of the matter in its initial stage shall be kept confidential unless
otherwise requested by the judge.
18. Judges shall be subject to suspension or removal only for reasons of
incapacity or behaviour that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in
accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be
subject to an independent review. This principle may not apply to the decisions of
the highest court and those of the legislature in impeachment or similar
proceedings.
THE FOLLOWING PRINCIPLES are intended to establish standards for
ethical conduct of judges. They are designed to provide guidance to judges 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 and support the judiciary. These
principles presuppose that judges are accountable for their conduct to
appropriate institutions established to maintain judicial standards, which are
themselves independent and impartial, and are intended to supplement and not
to derogate from existing rules of law and conduct which bind the judge.
Commentary
Fundamental and universal values
18. The statement of principles which follow, which are based on six fundamental
and universal values, and the statements of the application of each principle, are
intended to provide guidance to judges and to afford the judiciary a framework for
regulating judicial conduct, whether through a national code of conduct or other
mechanism. The statements of the application of each principle have been designed so
as not to be of too general a nature as to be of little guidance, or too specific as to be
irrelevant to the numerous and varied issues which a judge faces in his or her daily
life. They may, however, need to be adapted to suit the circumstances of each
jurisdiction.
Not every transgression warrants disciplinary action
19. While the principles of judicial conduct are designed to bind judges, it is not
intended that every alleged transgression of them should result in disciplinary action.
Not every failure of a judge to conform to the principles will amount to misconduct
(or misbehaviour). Whether disciplinary action is, or is not, appropriate may depend
on other factors, such as the seriousness of the transgression, whether or not there is a
pattern of improper activity, and on the effect of the improper activity on others and
on the judicial system as a whole.
Understanding the role of the judiciary
20. The understanding of the role of the judiciary in democratic states, especially
the understanding that the judge’s duty is to apply the law in a fair and even-handed
manner with no regard to contingent social or political pressures, varies considerably
in different countries. The levels of confidence in the courts’ activity are consequently
not uniform. Adequate information about the functions of the judiciary and its role
can therefore effectively contribute towards an increased understanding of the courts
as the cornerstones of democratic constitutional systems, as well as of the limits of
their activity. These principles are intended to assist members of the legislature and
the executive, as well as lawyers, litigants and members of the public, to better
understand the nature of the judicial office, the high standards of conduct which
judges are required to maintain both in and out of court, and the constraints under
which they necessarily perform their functions.
Necessity for standards of conduct
21. The necessity to identify standards of conduct appropriate to judicial office
has been explained by a judge himself in the following terms:
No one doubts that judges are expected to behave according to certain
standards both in and out of court. Are these mere expectations of voluntary
decency to be exercised on a personal level, or are they expectations that a
certain standard of conduct needs to be observed by a particular
professional group in the interests of itself and the community? As this is a
fundamental question, it is necessary to make some elementary observations.
We form a particular group in the community. We comprise a select part of
an honourable profession. We are entrusted, day after day, with the exercise
of considerable power. Its exercise has dramatic effects upon the lives and
fortunes of those who come before us. Citizens cannot be sure that they or
their fortunes will not some day depend upon our judgment. They will not
wish such power to be reposed in anyone whose honesty, ability or personal
standards are questionable. It is necessary for the continuity of the system of
law as we know it, that there be standards of conduct, both in and out of
court, which are designed to maintain confidence in those expectations.11 [11 J.B. Thomas, Judicial Ethics in Australia, Sydney, Law Book Company, 1988, p.7. ]
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