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CIJL Yearbook-Universal Aspects of Judicial Independence-VIII-2000-Eng CIJL Yearbook January 2000 Universal Aspects of Judicial Independence Guest Editor: Justice Robert D. Nicholson Editor: Mona 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 CIJL 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 ICJ/CIJL 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’1 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, 2000. ISSN 0252-0354 Printed in France, Imprimerie Abrax - Chenove Table of Contents Editorial .................................................................................................. 7 Robert D. NichoLon Judicial Independence - A n Enduring, W idespread Social Value ......................................... 13 A.R.B. Ameradinghe Capturing and Maintaining Public Confidence in Courts ......... 43 Robert D. NichoLon Modes of Appointment and Training of Judges A C ommon I.aw Perspective ............................................................. 81 M ich ael D. K irby From Diplock Courts to J u ry Courts? ........................................... 99 Peter Charleton and P aul Anthony McDermott Prosecuting Authority in the New South Africa .......................... 137 Dirk van ZyL Sm it and Edther Steyn The Role of the Zimbabwe Judiciary since Independence ........ 157 A.R. Gubbay Starting Down the Long Trail of Judicial Independence: The Experience in Russia, the Newly Independent States, and Central and Eastern Europe ...................... ............................... 173 Jam ed G. Apple Judicial Independence in the South Pacific .................................. 191 Thomas Eichelbaum Textd Beirut D eclaration ............................................................................... 207 Recommendations of the First Arab Conference on Justice, held in Beirut, Lebanon, 14 to 16 June 1999 Latimer House Principles and Guidelines for the Commonwealth 215 Colloquium on "Parliamentaiy Supremacy, Judicial Independence towards a Commonwealth Model”, held at Latimer House, United Kingdom, 15 to 19 June 1998 E ditorial Looking through former Yearbooks of the Centre for the Independence of Judges and Lawyers, the universal and endur­ ing character of the themes relating to that independence is read­ ily apparent. This being the 21st year of the Centre’s work, it is appropriate for this Yearbook to remind us that the universality of the issues dealt with by the Centre is such that its work may ~ never be completed. One change concerning these themes in recent years, however, is that they are more than ever being discussed, debated and sought after. With the demise of many totalitarian regimes, the spread of democracy and the globalization of the economy and the law, the social and political value of independence in judges and lawyers has received enhanced public attention. There are ironies associated with this. In countries seeking to develop along democratic lines, there may be occasion for con­ stant struggles to obtain respect for the necessary conditions of independence in which law can truly rule. Yet in developed countries that owe so many of their achievements to the stability of the rule of law, the same conditions of independence constant­ ly lack full appreciation and may even be under challenge and attack. The universal lesson is that where people wish to be ruled by the laws they have made, they must be both aware of and stand up for the conditions of independence which enable decisions to be made truly in accordance with those laws. The papers in this Yearbook illustrate particular aspects of that ongoing endeavour around the world. Public knowledge of the political value of independence is vital. It is sometimes sadly true that it is only the judges and lawyers themselves who are asserting that value. Yet the principles of independence for which the Centre stands are not for the benefit of lawyers and judges. Rather they are a fundamental principle of political organisation providing protection to a people against the “raw” exercise of power. Public understanding of this is therefore necessary to the endurance of the political value attached to the principles. For that reason this Yearbook contains papers which look at the operation of judicial independence from the perspective of both the wider political context in which the principles are asserted and from the viewpoint of the public. The democratic setting of the principles has been the focus of two significant meetings during the year. The first was the First Arab Conference on Justice, held in Beirut. The second was the issue of the Latimer House Guidelines for the Commonwealth on Parliamentary Supremacy and Judicial Independence. This was the product of work of representatives of the Commonwealth Parliamentary Association, the Commonwealth Magistrates' and Judges’ Association, the Commonwealth Lawyers’ Association and the Commonwealth Legal Education Association. The for­ mer frankly acknowledged that “the judiciary’s capacity to be a substantial power in Arab countries and to be an active party in entrenching democratic principles and the rule of law is pending on the progress of democratic development and respect for the law, including the subjection of the main powers to it”. The pre­ amble to the latter recalled the renewed commitment of the 1997 Commonwealth Heads of Government Meeting to the Harare Principles and the Millbrook Commonwealth Action programme which included commitment to the fundamental political values of “democracy; [and] democratic processes and institutions... The Yearbook draws attention to the content of these two new expressions of principle, which are reproduced in this volume as texts. In doing so it is not the intention of the Yearbook that it should suggest the principles of judicial and professional independence are entirely the product of Western democratic political thought. The Yearbook therefore opens with a challenging presentation by Justice Amerasinghe of Sri Lanka in which he evokes ancient sources of judicial independence in the faiths and practices acknowledged outside Western histoiy. The public context in which the principles operate continues as a theme of this Yearbook. In the Latimer House Guidelines it is stated that among the “accountability mechanisms” for the judi­ ciary is public criticism. There it is asserted that "legitimate pub­ lic criticism of judicial performance is a means of ensuring accountability”. Furthermore it is said “criminal law and con­ tempt proceedings are not appropriate mechanisms for restrict­ ing legitimate criticism of the courts”. This role of public criticism is among themes examined in the next paper by Justice Robert
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