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CIJL Yearbook-Judiciary in a Globalized World-VII-1999-Eng

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CIJL Yearbook-Judiciary in a Globalized World-VII-1999-Eng Volume VII CIJL Yearbook January 1999 - The Judiciary a Globalized World E d itor: M o n a A . R ish m a w i Centre for the independence of Judges and Lawyers Geneva, Switzerland Established in 1978 by the International Commission of Jurists in Geneva, the Centre for the Independence of Judges and Lawyers: - promotes world-wide the basic need for an independent judiciary and legal profession; - organizes support forjudges and lawyers who are being harassed or persecuted. In pursuing these goals, the CIJL: - works with the United Nations in setting standards for the independence of judges and lawyers. The CIJL was instrumental in the formulation of the UN Basic Principles on the Independence of the Judiciary and the UN Basic Principles on the Role of Lawyers endorsed by the UN General Assembly; - organizes conferences and seminars on the independence of the judiciary and the legal profes­ sion. Regional seminars have been held in Central America, South America, South Asia, South­ East Asia, East Africa, West Africa and the Caribbean. National workshops have been orga­ nized in Cambodia, India, Nicaragua, Pakistan, Paraguay and Peru; - sends missions to investigate situations of concern, or the status of the bar and judiciary, in specific countries; - provides technical assistance to strengthen the judiciary and the legal profession; - publishes a Yearbook in English, French and Spanish. It contains articles and documents rele­ vant to the independence of the judiciary and the legal profession. Over 5,000 individuals and orga­ nizations in 127 countries receive the CIJL Yearbook; - publishes a yearly report on “Attacks on Justice: The Harassment and Persecution of Judges and Lawyers” world-wide. Appeals Network Jurists and their organizations may join the world-wide network which responds to CIJL appeals by intervening with government authorities in cases in which lawyers or judges are being harassed or per­ secuted. Affiliates - Contributors Jurists’ organizations wishing to affiliate with the C IJL are invited to write to the Director. Organizations and individuals may support the work of the C IJL as Contributors by making a payment of Swiss francs 220 per year. Contributors will receive by Air mail Copies of all IC J/C IJL regular and special publications . Subscriptions to CIJL Publications Subscriptions to the Yearbook and the annual report on “Attacks on Justice: The Harassment and Persecution of Judges and Lawyers” are Swiss francs 25, each, or for combined subscription Swiss francs 43, including postage. Note: Payment may be made in Swiss francs or in the equivalent amount in other currencies either by direct cheque valid for external payment or through a bank to Societe de Banque Suisse, Geneva, account No. 142.548.0; National Westminster Bank, 1 New Bond Street, London W1A 2JH, account No. 11762837. Proforma invoices will be supplied on request to persons in countries with exchange control restrictions to assist in obtaining authorization. Centre for the Independence of Judges and Lawyers P.O.Box 216 - 81 A, avenue de Chatelaine CH-1219 Chatelaine/Geneva Switzerland Tel: (4122) 979 38 00 Fax: (4122) 979 38 01 © Copyright, International Commission of Jurists/Centre for the Independence of Judges and Lawyers, 1999. ISSN 0252-0354 Printed in France, Imprimerie Abrax - Chenove, France Table of Contents E d ito rial ......................................................................................................... 7 The Judiciary and Constitutionalism in a Democratic Society ......................................................................... 15 Idmail Mahomed The Role of International Financial Institutions in Ju d ic ia l R eform .................................................................................... 31 Diego Garcia-Sayari The C ourts o f the Future ....................................................................... 51 Michael Kirby The UN Special Rapporteur on the Independence of Judges and Lawyers ............................... 63 Param Cunmrajwamy Judicial Independence vs. Judicial Accountability: A D ebate I. An Introduction ............................................................................. 85 P. N. Bhagwati II. A Comment ................................................................................... 91 Jerome J. Shed tack Reflections on Judicial Independence, Impartiality, and the Foundation of Equality .......................................................... 95 Claire I ’Heureucc -Dube A Note on the C l JL Protection Work ............................................. 109 Marie Jode Credpin E ditorial This volume is dedicated to the 20th anniversary of the Centre for the Independence of Judges and Lawyers (CIJL), which was established by the International Commission of Jurists in January 1978 with the global mission of promoting and protecting judicial and legal independence throughout the world. The C IJL started its work on two fronts. The first aspect focused on exploring the meaning of judicial and legal independence and the components of these principles. To this end, it organised meetings and workshops to clarify concepts and principles. It later moved into a standard-setting exercise when it worked with the United Nations on the formulation of the United Nations Basic Principles on the Independence of the Judiciary, and their eventual adoption in 1985, as well as the United Nations Basic Principles on the Role of Lawyers, and their eventual adoption in 1990. It can now be somehow confidently stated that this first aspect of the C IJL’s mission is largely fulfilled, although there will always be a need to adapt the standards to new challenges and opportunities. The second part of the C IJL’s mission, however, is far from being achieved. It is focused on organising support for judges and lawyers who are harassed for carrying out their professional duties. Unfortunately, the persecution of jurists continue to be a daily occurrence. The C IJL intervenes on behalf of persecuted jurists, sends fact-finding missions to countries to report on their level of respect of these principles, and observes the trials of jurists. The C IJL protection work culminated in 1994 with the establishment by the United Nations’ Commission on Human Rights of the mandate of the Special Rapporteur on the independence of the judges and lawyers as one of the Commission’s thematic protection mechanisms. This was done following CIJL's recommendation. In carrying out its work, the Cl JL has mainly focused on the role of the State. However, new forces are entering the scene nowadays. These forces can impact on judicial and legal independence. During the last few years, various international financial institutions, as well as development and funding agencies have been deeply involved in judicial reform. Their activities have direct impact on the independence of judges and lawyers. In fact, the State’s role in human rights promotion and protection in general is now changing as we see the very issue of State sovereignty taking a new shape. Todays State is different from yesterdays entity. Its control over its affairs is far from absolute. In most parts of the world today decisions by governments are determined by the requirements of the international market. The concerns of investors and international financial institutions often become the most decisive factor in the governmental decision-making process. In today’s world, economic considerations dominate. The ideological considerations and strategic interests that once dominated relations amongst nations during the Cold War, are now replaced with economic benefits as the free market prevails. People in an increasing number of countries drink Coca-Cola, eat McDonalds, and watch CNN, if they can afford these commodities. Yesterday’s political alliances are now replaced by today’s economic alliances. Grabbing new markets, and finding ways to reduce production costs, to eliminate legal and other barriers on trade, and to ensure free and fair competition in trade, dominate international relations. As a result, the World Trade Organisation (WTO) has become a major player on the international arena, only a few years following its establishment in 1995. Many governments, particularly in the Third World as well as in Eastern Europe and the former Soviet Union, have to adjust their systems to these new realities. Privatisation and the dictum of small government are now being aggressively promoted by the international financial institutions. The role of what is termed as civil society is also encouraged. While this has no doubt reduced government costs, it forced States to retreat in many countries from subsidising basic needs, such as food, water, and electricity, and from rendering basic services such as health care and education. While the quality of services may have improved as they were left to the competitive private market, the services themselves often have become more expensive and inaccessible to the underprivileged. The trend has also established a new power basis. It has, for instance, increased the role that the business community has traditionally played in governance issues. In some countries, like Russia, it has also led to the emergence of new forms of organised crime that control not only economic and political life, but also basic security. Globalization has its affects on the work of national parliaments as well. In many countries, they are busy adjusting their laws to the requirements of the international financial institutions and
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