COMMENTARY ON THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT THE JUDICIAL INTEGRITY GROUP March 2007 2 CONTENTS PREFACE … 5 ACKNOWLEDGMENTS … 7 DRAFTING HISTORY … 9 PREAMBLE … 19 Value 1: INDEPENDENCE … 35 Value 2: IMPARTIALITY … 53 Value 3: INTEGRITY … 73 Value 4: PROPRIETY … 79 Value 5: EQUALITY … 111 Value 6: COMPETENCE AND DILIGENCE … 119 IMPLEMENTATION … 131 DEFINITIONS … 133 Appendix: CULTURAL AND RELIGIOUS TRADITIONS … 135 SELECT BIBLIOGRAPHY … 147 INDEX … 151 3 4 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. It commenced as an informal group of Chief Justices and Superior Court Judges from around the world who combined their experience and skill with a sense of dedication to this noble task. Since then, its work and achievements have grown to a point where they have made a significant impact on the global judicial scene. The principles tentatively worked out originally have received increasing acceptance over the past few years from the different sectors of the global judiciary and from international agencies interested in the integrity of the judicial process. In the result, the Bangalore Principles are increasingly seen as a document which all judiciaries and legal systems can unreservedly accept. In short, these principles give expression to the highest traditions relating to the judicial function as visualised in all the world’s cultures and legal systems. The task of reaching agreement on these core principles has been a difficult one but the Judicial Integrity Group, through its unwavering commitment to achieving a result which would command universal acceptance, has surmounted the barriers that appeared in the way of a universal draft. 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. A detailed commentary had been prepared on each of the Bangalore Principles, and the Principles along with the Draft Commentary have received careful discussion and consideration from an Open-Ended Intergovernmental Expert Group 5 Meeting held in Vienna on 1st and 2nd March 2007, attended by participants from over 35 countries. The Draft and proposed amendments also received detailed consideration at the 5th Meeting of the Judicial Integrity Group. 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 6 ACKNOWLEDGMENTS In the preparation of this Commentary, reference has been made to, and inspiration drawn from, numerous sources. These include international instruments, national codes of judicial conduct and commentaries thereon, judgments and decisions of international, regional and national courts, opinions of judicial ethics advisory committees, and learned treatises. Where citations have been used, these have been acknowledged in the footnotes. Where opinions and comments have been borrowed from a national or regional context and often adapted to a degree of generality appropriate for use by all judicial systems, the original source is not mentioned in the text. However, all sources to which reference was made are included in the chapter on Drafting History and in the Select Bibliography, and their invaluable contribution is most gratefully acknowledged. Particular mention must be made of three sources: Canadian Judicial Council, Ethical Principles for Judges (1998); Council of Europe, Opinions of the Consultative Council of European Judges (2001-2006); and Hong Kong Special Administrative Region of China, Guide to Judicial Conduct (2004). The Judicial Integrity Group gratefully acknowledges the assistance it received from the Deutsche Gesellschaft fur Technische Zusammenarbeit (GTZ) GmbH, Germany, which facilitated both the research and the writing of this Commentary; and from the United Nations Office on Drugs and Crime, Vienna, which convened an Intergovernmental Expert Group to review the Draft Commentary and whose contributions have enriched the content of this document. 7 8 DRAFTING HISTORY Background In April 2000, on the invitation of the United Nations Centre for International Crime Prevention, and within the framework of the Global Programme Against Corruption, a preparatory meeting of a group of Chief Justices and senior justices was convened in Vienna, in conjunction with the Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. The objective of the meeting was to address the problem that was created by evidence that, in many countries, across all the continents, many people were losing confidence in their judicial systems because they were perceived to be corrupt or otherwise partial. This evidence had emerged through service delivery and public perception surveys, as well as through commissions of inquiry established by governments. Many solutions had been offered, and some reform measures had been tried, but the problem persisted. This was intended to be a new approach. It was the first occasion under the auspices of the United Nations when judges were invited to put their own house in order; to develop a concept of judicial accountability that would complement the principle of judicial independence, and thereby raise the level of public confidence in the Rule of Law. At the initial stage, recognizing the existence of different legal traditions in the world, it was decided to limit the exercise to the common law legal system. Accordingly, the initial participants were from nine countries in Asia, Africa and the Pacific, which applied a multitude of different laws but shared a common judicial tradition. The Judicial Integrity Group The first meeting of the Judicial Group on Strengthening Judicial Integrity (or the Judicial Integrity Group, as this body has come to be known), was held at the United Nations Office in Vienna on 15 and 16 April 2000. It was attended by Chief Justice Latifur Rahman of Bangladesh, Chief Justice Y. Bhaskar Rao of Karnataka State in India, Justice Govind Bahadur Shrestha of Nepal representing the Chief Justice of that country, Chief Justice M.L. Uwais of Nigeria, Deputy President Pius Langa of the Constitutional Court of South Africa, recently retired Chief Justice F.L. Nyalali of Tanzania, and Justice B.J. Odoki, Chairman of the Judicial Service Commission of Uganda, under the chairmanship of Judge Christopher Gregory Weeramantry, Vice- President of the International Court of Justice. Justice Michael Kirby of the High Court of Australia functioned as Rapporteur. Dato' Param Cumaraswamy, UN Special Rapporteur on the Independence of Judges and Lawyers), Justice (Dr) Ernst Markel, Vice-President of the International Association of Judges, and Dr Giuseppe di Gennaro participated as Observers. At this meeting, the Judicial Integrity Group took two decisions. First, they agreed that the principle of accountability demanded that the national judiciary should assume an active role in strengthening judicial integrity by effecting such systemic reforms as is within its competence and capacity. Second, they recognized the