CIJL BULLETIN N° 23 SPECIAL ISSUE ICJ CONFERENCE ON THE INDEPENDENCE OF JUDGES AND LAWYERS CARACAS, VENEZUELA 16-18 JANUARY 1989 UNDER THE AUSPICES OF THE UNITED NATIONS CENTRE FOR THE INDEPENDENCE OF JUDGES AND LAWYERS April 1989 Editor: Reed Brody The Centre for the Independence of Judges and Lawyers was created by the Inter­ national Commission of Jurists in 1978 to counter serious inroads into the indepen­ dence of the judiciary and the legal profession by: - promoting world-wide the basic need for an independent judiciary and legal pro­ fession; - organising support for judges and lawyers who are being harassed or persecuted. The work of the Centre is supported by contributions from lawyers’ organisations and private foundations. There remains a substantial deficit to be met. We hope that bar associations and other lawyers’ organisations concerned with the fate of their col­ leagues around the world will provide the financial support essential to the survival of the Centre. Affiliation The affiliation of judges’, lawyers’ and jurists’ organisations is welcomed. Interested organisations are invited to write to the Director, CIJL, at the address indicated below. Individual Contributors Individuals may support the work of the Centre by becoming Contributors to the CIJL and making a contribution of not less than SFr. 100.- per year. Contributors will receive all publications of the Centre and the International Commmission of Jurists. Subscription to CIJL Bulletin Subscriptions to the twice yearly Bulletin are SFr. 12 - per year surface mail, or SFr. 18.- per year airmail. 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; National Westminster Bank, 63 Piccadilly, London W1V OAJ, account No. 11762837; or Swiss Bank Corporation, 4 World Trade Center, New York, N.Y. 10048, account No. 0-452­ 709727-00. Pro-forma invoices will be supplied on request to persons in countries with exchange control restrictions to assist in obtaining authorisation. Inquiries and subscriptions should be sent to the CIJL, P.O. Box 120, CH-1224 Chene-Bougeries/Geneva, Switzerland Tel. (41) (22) 49 35 45, Telex 418 531 ICJ CH, Telefax (41) (22) 49 31 45 CIJL BULLETIN 23 SPECIAL ISSUE TABLE OF CONTENTS Preface, by Niall MacDermot................................................................. 1 Words of Welcome, by Ambassador Andres Aguilar.......................... 3 Opening Speech, by Dr. German Nava Carrillo, Foreign Minister of Venezuela................................................... 6 Statement of the Representative of the United Nations, Mr. Kurt Neudek................................................................................ 10 The Pressures on and Obstacles to the Independence of the Judiciary,by Justice P.N. Bhagwati................................... .. 14 The International Protection of the Independence of the Judiciary,by Jules Deschenes................................................ 28 The Independence of the Legal Profession, by Param Cumaraswamy................................... ............................... 39 Introductory Remarks on "Pressures and Obstacles to the Independence of the Judiciary",by Prof Alfredo Etcheberry......... 56 How the Judiciary Should React to Violent Changes of Government and de Facto Regimes, by E. Dumbutshena.............. 61 Implementation of the U.N. Basic Principles on the Judiciary and Adoption of the U.N. Draft Basic Principles on Lawyers, by P. Telford Georges....................................................... 69 The Independence of the Legal Profession - Problems, Pressures and Expectations,by F.S. Nariman........... .................... 76 The Independence of the Judiciary and the Legal Profession: The Draft United Nations Basic Principles on the Role of Lawyers - A Caribbean Perspective,by Dr. Lloyd Barnett..... 85 Development and the Independence of the Legal Profession, by Chris de Cooker............................................................................ 94 Rapporteurs' Summaries................................... .................................... 99 Caracas Plan of Action............................................................. .............. 106 United Nations Basic Principles on the Independence of the Judici ary................................................................................... 102 ANNEXES - United Nations Basic Principles on the Independence of the Judiciary.................................................................................... 109 - Draft Basic Principles on the Role of Lawyers ................................. 114 - Procedures for the Effective Implementation of the Basic Principles on the Independence of the Judiciary..................... 121 List of Participants.................................................................................. 126 PREFACE This special issue of the CIJL Bulletin is the report of an international conference held in Caracas, Venezuela, from 16-18 January 1989 to mark the 10th anniversary of the CIJL. We were greatly honoured by the conference being held under the auspices of the United Nations. This was particularly welcome in view of the approval by the UN General Assembly in 1985 of the Basic Principles on the Independence of the Judiciaiy, and the prospect that following the next UN Congress on the Prevention of Crime and the Treatment of Offenders in 1990, the General Assembly will likely give approval to the Basic Principles on the Role of Lawyers. In addition, in May of 1989 the Economic and Social Council will consider Procedures for the Effective Implementation of the Basic Principles on the Independence of the Judiciaiy. These are, or will be, the first international instruments setting forth standards for the independence of the judiciary and the legal profession. Consequently, the task which the CIJL set itself a decade ago to promote standards for the independence of judges and advocates has now been raised to the intergovernmental level. The ICJ and the CIJL are proud to have worked with the able staff of the UN Crime Branch Secretariat in Vienna - and in particular Mr. Eduardo Vetere and Mr. Kurt Neudek - in the elaboration of these documents. The conference concluded by approving the "Caracas Plan of Action," which will set the programme of work for the Centre for several years ahead. We hope to be able to cooperate in this task with the relevant United Nations bodies, the Organisation of American States, the Organisation of African Unity, and with international and national associations of judges and of advocates, law societies and other interested organisations in all parts of the world. This report includes some of the papers delivered at the Conference - which represent the opinions of the authors and not necessarily the views of the ICJ or the United Nations - as well as the "Plan of Action" and the basic international documents and drafts. We express our particular thanks to the government of Venezuela for its generous assistance and support as well as to the Swedish International Development Authority for its continuing support without which the conference could not have been organised. April 1989 Niall MacDermot Secretary-General ■ International Commission o f Jurists WORDS OF WELCOME by Ambassador Andres Aguilar President, International Commission o f Jurists On the initiative of the International Commission of Jurists, under the auspices of the United Nations and with the willing consent and invaluable collaboration of the Government of Venezuela, we begin this afternoon the Conference on the Independence of Judges and Lawyers, an issue that the Commission considers of the utmost importance. The International Commission of Jurists, a non-governmental organisation with headquarters in Geneva, has as its purpose the promotion, in all countries of the world, of the Rule of Law and respect for man's freedoms and rights. To this effect, the Commission, bearing in mind the best tradi­ tions and the highest ideals of the administration of justice and the supre­ macy of Law, stimulates the action of jurists throughout the world, with the purpose,inter alia, of promoting and strengthening the independence of the judiciary and the legal profession, as well as the right to due process of law for every person charged with the commission of an offence. To this end, the Commission edits publications in various languages, some of which appear regularly, in particular the CIJLBulletin and the ICJ Review, prepares and sponsors programmes and organises, at its headquarters and in different regions of the world, speeches, courses, seminars and congresses. This Conference is a good example of the International Commission of Jurists' activities, with the support and collaboration of other national and international non-governmental organizations, the United Nations and other regional and universal intergovernmental entities, as well as the governments of different states. In the meeting which begins today, the participants include not only active and honorary members of the International Commission of Jurists, but also representatives of national sections and affiliated organisations of the Commission. Furthermore, although all the participants are distinguished jurists, some have been especially invited as experts, not only for their knowledge and experience, but for their particular interest in the Conference's main issue. Indeed,