Judges Must Be Accountable
Dr. Nihal Jayawickrama
The edited text of a presentation made at the Conference of Chief Justices and Presidents of Supreme Courts and Constitutional Courts of Africa convened by the Chief Justice of the Supreme Constitutional Court of Egypt, in Cairo last week. Although two Sri Lankans were intimately involved in the processes that led to the formulation of the Bangalore Principles of Judicial Conduct, the Sri Lanka Judiciary remains one of the few judiciaries in the world that have failed to incorporate these Principles in a code of judicial conduct of its own.
From Independence to Accountability –
THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT
Judicial Independence
In 1985, the United Nations agreed upon certain basic principles that underpin judicial independence and called upon governments to implement them. They are contained in the UN Basic Principles on the Independence of the Judiciary. Judicial independence is the right enjoyed by people when they invoke the jurisdiction of the courts seeking and expecting justice. It is not a privilege accorded to the judiciary. It refers to the state of mind of the judge. It refers also to the institutional arrangements that enable the judge to enjoy that state of mind. These include constitutional guarantees of security of tenure and of remuneration, removal from office only for misbehaviour or infirmity of body or mind, and protection against vexatious litigation instituted by dissatisfied parties. Within that constitutional framework, and buttressed by the judicial oath, it was assumed that a person appointed to judicial office will acquire that state of mind that would 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.
Twenty-one years later, in 2006, the United Nations invited governments to encourage their judiciaries to implement the Bangalore Principles of Judicial Conduct. It described the Bangalore Principles as being “a further development” of, and as being “complementary” to, the 1985 Principles relating to judicial independence. Why did it become necessary to look beyond judicial independence? Why did the focus move from securing judicial independence to ensuring the ethical conduct of members of the judiciary; from judicial independence to judicial accountability. I would venture to suggest five reasons.
First: The independence of the judiciary was traditionally believed to be endangered by state authorities and state functionaries. With the steady growth of the corporate sector, the independence of the judiciary has to be secured from business and corporate interests too. In the contemporary world, judicial independence implies not only that the judiciary should be free from governmental and political pressure, but also that judges should not succumb to the enormous power, wealth and resources of the corporate sector.
Second: In the countries of Central and Eastern Europe that rejected their authoritarian regimes in the final decade of the twentieth century, the judiciary had been a component of the machinery of the State. The judges were bureaucrats wedded to the authoritarian State. Now, almost overnight, they were required to emancipate themselves. They were required to demonstrate a strong attachment to democracy and human rights. They were required to become major players in fashioning the social, moral and political fabric of their emerging democracies. They needed to adopt values that matched these public expectations. They needed self-regulatory standards that recognized the new responsibilities which they had accepted.
