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Tek Narayan Kunwar

Abstract

Judicial independence is the most cherished value of the constitutional government. The judiciary undertakes the mission of imparting fair and impartial justice based on the constitution and recognized principles of justice for which it needs to be independent, impartial and accessible. Even though the foundation of an independent system of justice was laid down by the 1990 Constitution, not much has been done by way of setting standards of judicial independence. The article attempts to define judicial independence, looks into the concept of separation of power and judicial independence, discusses a few other concepts such as the rule of law, impartiality, accountability and also collects and collates the global information on judicial standards. The author also advances some suggestions for the implementation of judicial independence. Though written in a global perspective, it has immense value to the Nepali justice sector as well.

1. Introduction

Judicial Independence comprises principles that decisions of the judiciary should be impartial and not subject to influence from the other branches of government or from private or political interests. Judicial independence is secured by giving judges long, and sometimes lifetime, tenure and making them not easily removable. Judicial independence means that judges are free to decide cases fairly and impartially, relying only on the facts and the law. It means that judges are protected from various pressures like political, legislative, special interest, media, public, financial, or even personal pressure.

Independent and professional judges are the foundation of a fair, impartial, and constitutionally guaranteed system of courts of law known as the judiciary. This independence does not imply judges can make decisions based on personal preferences but rather that they are free to make lawful decisions even if those decisions contradict the government or powerful parties involved in a case.

In democracies, independence from political pressures of elected officials and legislatures guarantees the impartiality of judges. Judicial rulings should be impartial, based on the facts of a case, individual merits and legal arguments, and relevant laws, without any restrictions or improper influence by interested parties. These principles ensure equal legal protection for all. The power of judges to review public laws and declare them in violation of the nation’s constitution serves as a fundamental check on potential government abuse of power even if the government is elected by a popular majority. This power, however, requires that the courts be seen as independent and able to rest their decisions upon the law, not political considerations.

An independent judiciary assures people that court decisions will be based on the nation’s laws and constitution, not on shifting political power or the pressures of a temporary majority. Endowed with this independence, the judicial system in a democracy serves as a safeguard to the people’s rights and freedoms. The role of the judiciary in any society must be to protect human rights by way of due process and effective remedies. This role cannot be fulfilled unless the judicial mechanism is functioning independently, with its decisions based solely on the basis of legal principles and impartial reasoning. This article gives an overview of the factors comprising judicial independence, institutional independence, individual independence, impartiality and accountability through the experience of various countries.

2. Judicial Independence defined 

The independence of the judiciary can be defined in many ways. Some scholars have produced long lists of criteria the judiciary must meet; others focus on more narrow aspects of judicial independence. But most agree that a truly independent judiciary has three characteristics:-

1. It is impartial: Judicial decisions are not influenced by the judge’s personal interest in the outcome of the case. Some analysts incorporate into “impartiality” the idea that judges are not selected primarily because of their political views but on merit.

2. Judicial decisions, once rendered, are respected: Either the parties to the case must comply voluntarily with the decision, or those with the power to coerce compliance must be willing to use this power if compliance is not forthcoming.

3. The judiciary is free from interference: Parties to a case, or others with an interest in its outcome, cannot influence the judge’s decision. In practice, protecting judges from private persons with an interest in the case means preventing judicial corruption and coercion.

Under any definition, judicial independence is multi-dimensional and multifaceted. Accordingly, the conceptual framework for assessing judicial independence, described below, is designed to capture the dynamics that encourage or impede judicial independence. Some selected definitions are given below:

1. “Judicial Independence- Freedom from direction, control, or interference in the operation or exercise of judicial powers by either the legislative or executive arms of government.”[1]

2. “A truly independent judiciary is one that issues decisions and makes judgments which are respected and enforced by the legislative and executive branches; that receives an adequate appropriation from Congress; and that is not compromised by politically inspired attempts to undermine its impartiality…. Judicial independence includes the independence of an individual judge as well as that of the judiciary as a branch of government. Individual independence (otherwise known as decisional independence) is both substantive, in that it allows judges to perform the judicial function subject to no authority but the law, and personal, in the sense that it guarantees judges job tenure, adequate compensation and security.”[2]

3. “Judicial independence is the freedom we give judges to act as principled decision-makers. The independence is intended to allow judges to consider the facts and the law of each case with an open mind and unbiased judgment. When truly independent, judges are not influenced by personal interests or relationships, the identity or status of the parties to a case, or external economic or political pressures.”[3]

4. “Judicial independence is the freedom that a judge should have to decide a case in front of her based on the facts and law, free from outside pressures or special interests.”[4]

5. “Judicial independence is widely considered to be a foundation for the rule of law… Most agree that a truly independent judiciary has three characteristics. First, it is impartial. Judicial decisions are not influenced by a judge’s personal interest in the outcome of the case…Second, judicial decisions, once rendered, are respected…The third characteristic of judicial independence is that the judiciary is free from interference. Parties to a case, or others with an interest in its outcome, cannot influence the judge’s decision.”[5]

6. “Judicial independence is a concept that expresses the ideal state of the judicial branch of government. The concept encompasses the idea that individual judges and the judicial branch as a whole should work free of ideological influence.”[6]

7. “The Judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without and restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”[7]

8. “Judicial independence refers to the insulation of the judiciary from the influence of other political institutions, interest groups, and the general public.”[8]

9. “If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.”[9]

10. “We must keep in mind that judicial independence is a means toward a strong judicial institution. The strong judicial institution is a means toward securing the basic goals of people: human liberty and a reasonable level of prosperity.”[10]

11. “Judicial Independence in the United States strengthens ordered liberty, domestic tranquility, the rule of law, and democratic ideals. At least in our political culture, it has proven superior to any alternative form of discharging the judicial function that has ever been tried or conceived. It would be folly to squander this priceless constitutional gift to placate the clamors of benighted political partisans.”[11]

12. “The law makes a promise—neutrality. If the promise gets broken, the law as we know it ceases to exist. All that’s left is the dictate of a tyrant, or perhaps a mob.”[12]

13. “The independence of all those who try causes between man and man, and between man and his government, can be maintained only by the tenure of their office. I have always thought, from my earliest youth till now that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people, was an ignorant, a corrupt, or a dependent Judiciary.”[13]

14. “Chief Justice Rehnquist has stated that the independent judiciary is one of the ‘crown jewels’ of the nation’s system of government. Certainly, judicial independence is an essential ingredient of the protection of individual liberty and equality in our constitutional system. Moreover, the independent judiciary checks the legislative and executive branches of the federal government, thereby helping to maintain our constitutional commitments both to separation of powers at the national level and to federalism in nation-state relations.”[14]

15. “The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship.”

3. Separation of Powers and Judicial Independence

Independence of the judiciary recognize from the notion of the separation of powers, whereby the executive, legislature and judiciary form three separate branches of government, which can constitute a system of checks and balances aimed at preventing abuses of power. This separation and consequent independence is a key to the judiciaries effective functioning and upholding of the rule of law and human rights. Without the rule of law, there can be no realization of human rights.

The principle of separation of powers in government is the rock layer of a democratic state based on the rule of law. The judicial power is one of the three powers of a democratic government. It is pursuant to this power that justice is dispensed in disputes not only between citizens and citizens but also between citizens and other government organs and agencies. Hence the need to vest this judicial power in a mechanism independent of the legislative and executive powers of the government with adequate guarantees to insulate it from political and other influence in order to secure its independence and impartiality. Understanding of, and respect for this scheme of arrangement in constitutional government, is a sine qua non for the effective and sound system of justice within which judges could discharge their roles independently and impartially. It is the want of understanding of and respect for this broader concept which has resulted in the present universal concern for judicial independence. It has shown that of the three arms of the government the judiciary is the most vulnerable needing security and protection.

The doctrine of the separation of powers dictates that each branch of government is to be separate from the others. The twin objects behind this doctrine are to ensure that no branch of government becomes too powerful and to allow each branch to act as a check or balance on the others. The constitutional system adopted in the world does not abide by a strict application of separation of powers. As in the United Kingdom, people claim more strongly on the independence of the judiciary from the legislative and executive branches of government. However, there are some exceptions to this: most notably, judges are appointed by the executive and can be removed from office through constitutional processes that requires an address of the legislature. In sharp contrast to the United States, however, there is no clear separation of power between the executive and the legislature in other countries. Executive government is conferred on the political party with the largest majority in the Lower House, and members of parliament head the various departments of executive government. It should be recalled, however, that pure separation of power does not provide stable government.[15] Separation of powers does not imply unaccountable power, such that each branch of government has some role to play in other branches.

4. Rule of Law and Judicial Independence

Rule of law means that no individual, president or private citizen, stands above law. Democratic governments exercise authority by way of law and are themselves subject to law’s constraints. Laws should express the will of the people, not the whims of kings, dictators, military officials, religious leaders, or self-appointed political parties. Citizens in democracies are willing to obey the laws of their society, then, because they are submitting to their own rules and regulations. Justice is best achieved when the laws are established by the very people who must obey them. Under the rule of law, a system of strong, independent courts should have the power and authority, resources, and the prestige to hold government officials, even top leaders, accountable to the nation’s laws and regulations. For this reason, judges should be well trained, professional, independent, and impartial. To serve their necessary role in the legal and political system, judges must be committed to the principles of democracy.

The laws of a democracy may have many sources: written constitutions; statutes and regulations; religious and ethical teachings; and cultural traditions and practices. Regardless of origin, the law should enshrine certain provisions to protect the rights and freedoms of citizens: Under the requirement of equal protection under the law, the law may not be uniquely applicable to any single individual or group. Citizens must be secure from arbitrary arrest and unreasonable search of their homes or the seizure of their personal property. Citizens charged with crimes are entitled to a speedy and public trial, along with the opportunity to confront and question their accusers. If convicted, they may not be subjected to cruel or unusual punishment. Citizens cannot be forced to testify against themselves. This principle protects citizens from coercion, abuse, or torture and greatly reduces the temptation of police to employ such measures.

5. Judicial Independence and Impartiality

There are two types of independence i.e. institutional and individual. Institutional independence requires the judiciary to be able to function without any influence from the government or other state agencies. This is usually necessitated by either the constitution or other legal provisions in all but socialist countries or those with military dictatorships. However, throughout the world, it is the practical realization of this principle that is more problematic. This can either be because legal provisions themselves are shaky, or that they are not being enforced as they should be. Together with institutional independence, it is essential that individual judges are also guaranteed the independence to undertake their work effectively. The two are obviously linked, and if there is no institutional independence, there is little chance of there being any individual independence. Both entitle and require judges to ensure that judicial proceedings are conducted fairly and the rights of all parties are respected; both require that judicial accountability is upheld.

Judicial impartiality is another aspect of judicial independence; while judicial independence requires that the judiciary be able to function effectively without undue interference from political or other agencies, judicial impartiality requires the judiciary to base their decisions on facts and in accordance with the law. Judges should thereby not have any preconceptions regarding issues they are deciding upon, nor should they favor either of the parties to the dispute. This includes the arbitrary use of contempt of court proceedings. Judges can enjoy freedom of expression and association while in office. These freedoms must be exercised in a manner that is compatible with the judicial function and that does not affect or appear to affect judicial independence or impartiality. Judges should not engage in any extra-judicial activity that is incompatible with their judicial function or the efficient and timely functioning of the court of which they are members, or that may affect or may appear to affect their independence or impartiality. Judges shall not exercise any political function.


6. Judicial Independence and Accountability

Whether judges are appointed or elected it is their performance on the bench and their accountability for improper activities that is crucial. While there is great debate as to how judges are put on the bench, the public’s dissatisfaction with the so-called independence of the judiciary and with the inadequacy of the judicial disciplinary machinery is disregarded by the Bench and Bar.

Judges are standard setters in society. They interpret and develop the law upon which society is structured and human relationships are conducted. Their actions and conduct, both within and outside the Court, must at all times be above suspicion and seen to be so if they are to command the respect and confidence of the public. Suspicious conduct of one or two judges is enough to tarnish the image of the entire judiciary. It follows that those appointed to this high position of esteem and respect must be only persons with proven competence, integrity, probity and independence. There should be no compromise on these standards. Judges appointed for lesser qualifications or for other considerations, political or otherwise, would eventually bring disrepute to their own institution.

Accountability and transparency are the very essence of democracy. Not one single public institution, or for that matter even a private institution dealing with the public, is exempt from accountability. Hence, the judicial arm of the government too is accountable. However, judicial accountability is not the same as the accountability of the executive or the legislature or any other public institution. This is because of the independence and impartiality expected of the judicial organ.

Judges are accountable to the extent of deciding the cases before them expeditiously in public (unless for special reasons they conduct the hearing in-camera), fairly and delivering their judgments promptly and giving reasons for their decisions; their judgments are subject to scrutiny by the appellate courts. No doubt legal scholars and even the public including the media may comment on the judgment. If they misconduct themselves, they are subject to discipline by the mechanism provided under the law. Beyond these parameters, they should not be accountable for their judgments to any others.

However, it must be stressed that the constitutional role of judges is to decide on disputes before them fairly and to deliver their judgments in accordance with the law and the evidence presented before them. It is not their role to make disparaging remarks about parties and witnesses appearing before them or to send signals to society at large in intimidating and threatening terms, thereby undermining other basic freedoms like freedom of expression. When judges resort to such conduct, they lose their judicial decorum and eventually their insulation from the guarantees for judicial independence. No doubt judges too have freedom of expression, but in the adjudicating process, they must be circumspect with their expressions to maintain their objectivity and impartiality.

7. Global Standards of Judicial Independence

A number of international and regional human rights instruments mandate an independent, impartial and competent judiciary. However, there is no actual definition as to the exact meaning of an independent judiciary. Various guidelines have been set forth internationally in documents such as the UN Basic Principles on the Independence of the Judiciary. While these documents are not binding on member states, they evidence high-level support for the principle of judicial independence. In addition, international and regional human rights courts and commissions have interpreted the provisions of human rights treaties and shed some light on the minimum standards and components of the right to a fair trial and judicial independence. The following are many of the international and regional, governmental and non-governmental, documents, guidelines and principles, which promote, define and interpret the principle of judicial independence in every region of the world.

1. Universal Declaration of Human Rights (UDHR)[16] article 10: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

2. International Covenant on Civil and Political Rights (ICCPR)[17] article 14(1):”… in the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law..”

3. Vienna Declaration and Program me for Action in 1993[18] “Every state should provide an effective framework of remedies to redress human rights grievances or violations. The administration of justice including law enforcement and prosecutorial agencies and, especially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development.”

4. European Convention for the Protection of Human Rights and Fundamental Freedoms(ECHR)[19] article 6(1): “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”;

5. Inter-American Convention on Human Rights (IACHR)[20] articles 8(1) “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal or any other nature.”

6. African Charter on Human and People’s Rights (ACHPR)[21] articles 7(1) “Every individual shall have the right to have his cause heard. This comprises … (d) the right to be tried within a reasonable time by an impartial court or tribunal” and 26 and 26 “State parties to the present Charter shall have the duty to guarantee the independence of the Courts.”

7. The UN Basic Principles on the Independence of the Judiciary [UNBP] (1985)[22] It calls on member States to guarantee judicial independence domestically through constitutional or legal provisions and highlight the standards for the independence of the judiciary, including separation of powers, technical competence, judicial qualifications, judicial selection, and conditions of service, security of tenure, training, immunity and judicial discipline. “The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.[23]” The UNBP are complemented by the UN Basic Principles on the Role of Lawyers (1990) and the UN Guidelines on the Role of Prosecutors (1990), which present guidelines related to the rights, duties and responsibilities of lawyers and prosecutors respectively. There is an understanding that the guarantee of judicial independence and fair trials cannot be achieved by setting guidelines applicable to the judiciary and individual judges but rather its fulfillment requires to address the broader legal community.

8. Latimer House Guidelines for the Commonwealth, 1998[24]

Preserving judicial independence the Latimer House Guidelines for the Commonwealth, 1998 has taken greater effort. The guideline has addressed three focal areas of judiciary which are:-

a. Judicial appointments

Jurisdictions should have an appropriate independent process in place for judicial appointments. Where no independent system already exists, appointments should be made by a judicial services commission (established by the Constitution or by statute) or by an appropriate officer of state acting on the recommendation of such a commission.

The appointment process, whether or not involving an appropriately constituted and representative judicial services commission, should be designed to guarantee the quality and independence of mind of those selected for appointment at all levels of the judiciary.

Judicial appointments to all levels of the judiciary should be made on merit with appropriate provision for the progressive removal of gender imbalance and of other historic factors of discrimination.

Judicial appointments should normally be permanent; whilst in some jurisdictions, contract appointments may be inevitable; such appointments should be subject to appropriate security of tenure. Judicial vacancies should be advertised.

b. Funding

Sufficient and sustainable funding should be provided to enable the judiciary to perform its functions to the highest standards. Such funds, once voted for the judiciary by the legislature, should be protected from alienation or misuse. The allocation or withholding of funding should not be used as a means of exercising improper control over the judiciary.

Appropriate salaries and benefits, supporting staff, resources and equipment are essential to the proper functioning of the judiciary.

As a matter of principle, judicial salaries and benefits should be set by an independent body and their value should be maintained.

c. Training

A culture of judicial education should be developed.

Training should be organized, systematic and ongoing and under the control of an adequately funded judicial body.

Judicial training should include the teaching of the law, judicial skills and the social context including ethnic and gender issues.

The curriculum should be controlled by judicial officers who should have the assistance of lay specialists.

For jurisdictions without adequate training facilities, access to facilities in other jurisdictions should be provided.

Courses in judicial education should be offered to practicing lawyers as part of their ongoing professional development training.

9. Recommendation No. R (94)12 on the Independence, Efficiency and Role of Judges (1993)[25]

The Council of Europe attempted to present in a coherent, synthetic manner the set of principles and elements that constitute “judicial independence”. The principles highlighted cover a wide range of issues, including the separation of powers, constitutional guarantees of independence, the jurisdiction of ordinary courts, freedom of expression and association, ethical standards, objective and transparent selection and disciplinary processes and judicial access to information.

8. Council of Europe Recommendation (1994)[26]

General Principles on the Independence of Judges has recommended the following:

1. All necessary measures should be taken to respect, protect and promote the independence of judges.

2. In particular, the following measures should be taken:

  1. The independence of judges should be guaranteed pursuant to the provisions of the Convention and constitutional principles…
  2. The executive and legislative powers should ensure that judges are independent and that steps are not taken which could endanger the independence of judges.
  3. All decisions concerning the professional career of judges should be based on objective criteria, and the selection and career of judges should be based on merit, having regard to qualifications, integrity, ability and efficiency…
  4. In the decision-making process, judges should be independent and be able to act without any restriction, improper influence, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason. The law should provide for sanctions against persons seeking to influence judges in any such manner. Judges should have unfettered freedom to decide cases impartially, in accordance with their conscience and their interpretation of the facts, and in pursuance of the prevailing rules of the law. Judges should not be obliged to report on the merits of their cases to anyone outside the judiciary.
  5. The distribution of cases should not be influenced by the wishes of any party to a case or any person concerned with the results of the case…
  6. A case should not be withdrawn from a particular judge without valid reasons, such as cases of serious illness or conflict of interest…

3. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.”

11. European Charter on the Status of Judges (1998)[27]

It was adopted by judges from 13 Western, Central and Eastern European countries as well as representatives of the European Association of Judges and of the European Association of Judges for Democracy and Freedom (MEDEL) under the leadership of the Council of Europe Directorate of Legal Affairs. The Charter defines the key elements to be included in the stature of judges, with a view to “ensuring competence, independence and impartiality” and therefore constitutes “a means of guaranteeing that the individuals whose rights are to be protected by the courts and judges have the requisite safeguards on the effectiveness of such protection.” Taking into account the differences between the various national systems, the Charter addresses a number of key issues, including judicial selection, training, security of tenure, judicial career development, liability, remuneration, termination of office and judicial councils. It also calls upon member States to enshrine fundamental principles and guarantees of judicial competence, independence and impartiality in their domestic legal system.

12. Syracuse Principles (1981)

Independence of the judiciary is defined by two ways on Syracuse Principles (1981)[28] as-

(1) That every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without any improper influences, inducements, or pressures, direct or indirect, from any quarter or for any reason, and

(2) That the judiciary is independent of the executive and legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature.”

13. New Delhi Standards (1982)

This is called Pre-UNBP Instruments.Before the adoption by the UN of the Basic Principles on the Independence of the Judiciary in 1985, a number of preliminary guidelines and sets of standards had been adopted by various organizations, such as the “New Delhi Standards” (1982)[29], the “Tokyo Principles” (1982)[30] and the Montreal Universal Declaration on the Independence of Justice (1983).[31] The latter was approved by some 130 jurists representing 20 international organizations at the 1st World Conference on the Independence of Justice and addresses issues regarding international and national judges as well as lawyers, jurors and assessors.

14. Montreal Universal Declaration on the Independence of Justice (1983)

In July 1983, the Universal Declaration on the Independence of Justice (The Montreal Declaration) was adopted at the First World Conference on the Independence of Justice, which similarly recognized that there was no single proper method of judicial selection, provided that it safeguarded against judicial appointments for improper motives;[32] and that participation in judicial appointments by the Executive or Legislature was consistent with judicial independence, so long as appointments were made in consultation with members of the judiciary and the legal profession, or by a body in which members of the judiciary and the legal profession participated.  The Declaration stated that candidates for judicial office should be individuals of integrity and ability, called for equality of access to judicial office[33] and stated that “the process and standards of judicial selection shall give due consideration to ensuring a fair reflection by the judiciary of the society in all its aspects”.[34]

15. Universal Charter of the Judge (1999)

The Universal Charter of the Judge (1999)[35] has defined the term “Independence” as follows: Judges shall in all their work ensure the rights of everyone to a fair trial. They shall promote the right of individuals to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in the determination of their civil rights and obligations or of any criminal charge against them. The independence of the judge is indispensable to impartial justice under the law. It is indivisible. All institutions and authorities, whether national or international, must respect, protect and defend that independence.” Judicial independence must be ensured by law creating and protecting judicial office that is genuinely and effectively independent from other state powers. The judge, as holder of judicial office, must be able to exercise judicial powers free from social, economic and political pressure, and independently from other judges and the administration of the judiciary.” Another effort with international ambitions has been recently launched under the leadership UN’s Judicial Group on Strengthening Judicial Integrity, which was originally composed of the Chief Justices of a number of countries of the Asia and Africa.[36]

16. The Bangalore Principles[37]

          The Bangalore Principles of Judicial Conduct are intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to provide the judiciary a framework for regulating judicial conduct. They are also intended to assist members of the executive and the legislature and lawyers and public in general, to better understand and extend support to the judiciary. These principles pre-suppose that judges are independent and impartial and established to maintain judicial standards which are intended to supplement and not to derogate from existing rules of law and conduct which are bind on the judges.

          There are six paramount values identified in these principles which cover the global standard of judicial conducts. They are:

Value 1 – Independence

Principle – Judicial Independence is pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual aspects.

Value 2 – Impartiality

          Principle – Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.

Value 3 – Integrity

          Principle – Integrity is essential to the proper discharge of the judicial office.

Value 4 – Propriety

          Principle – Propriety, and the appearance of propriety, are essential to the performance of all the activities of a judge.

Value 5 – Equality

          Principle – Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.

Value 6 – Competence and Diligence

          Principle – Competence and diligence are pre-requisites to the due performance of judicial office.

The Bangalore Principles of Judicial Conduct, 2002 is a draft document which has been prepared by judges using as reference a large number of existing national codes and international instruments. It is part of process of developing broad principles appropriate to an international code of judicial conduct, drawing on the best practice and precedents in many jurisdictions of the world. The Bangalore principles are more comprehensive in its elaboration than any of the national codes now in existence. However, the Bangalore principles have two major shortcomings. The first is that it does not take note of the practices in the civil law system. It is the product of judges mainly drawn from the common law jurisdictions. The second is that it does not recommend any mechanism for enforcement. The code only states that “by reason of nature of judicial office, effective measures shall be adopted by national judiciaries to provide mechanisms to implement these principles if such mechanisms are not already in existence in their jurisdictions.” Thus by leaving to the concerned States mechanism for implementation, it gives them room for non-action. 

17. Tokyo Principles (1982)

The Tokyo Principles present the work of the LAWASIA Human Rights Standing Committee to identify principles and conclusions on the independence of the judiciary in the LAWASIA region. More importantly, a Committee of Experts convened by the International Association of Penal Law, the International Commission of Jurists and the Center for the Independence of Judges and Lawyers drafted the “Syracuse Principles” (1981), which lay much of the ground work for the adoption of the UNBP four years later. These principles address the independence of the judiciary but also, inter alia, the qualification, selection, promotion and discipline of judges; training; working conditions; and administrative and financial arrangements of the judiciary.

In July 1982, Law Asia adopted the Tokyo principles in which it was acknowledged that there was no single essential method of appointment; what was more important was that the method employed should be such that ensured the appointment of persons fit to be judges, that provided safeguards against appointments being influenced by inappropriate factors, and that was directed to the appointment of judges of independence, capacity and integrity.[38] These principles also gave support for the formation of a Judicial Service Commission, or the adoption of a procedure for consultation pursuant to which those concerned in the administration of justice could participate.[39]

18. Beijing Principles (1995)

In Asia, the “Beijing Principles” (1995)[40] were adopted at the 6th Conference of Chief Justices of Asia and the Pacific Region. The main objective of the Conference was the promotion of “the administration of justice, the protection of human rights and the maintenance of the rule of law in the region”. To this aim, bearing in mind the Tokyo Principles and Revised Statement, the Chief Justices attempted to draft minimum standards for judicial independence, taking into account national differences. The main recommendations cover a wide range of topics in attempt to identifying consensus principles for the Asia and Pacific region, including judicial appointment, security of tenure, judicial resources and remuneration, court administration and the relationship of the judiciary with the executive. According to the Beijing Principles (1995) the independence of the judiciary requires that:-

(a) The Judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source; and

(b) The Judiciary has jurisdiction, directly or by way of review, over all issues of a justifiable nature.”

The adoption of the Beijing Statement represented the achievement of a remarkable consensus between the Chief Justices from countries reflecting the divergent cultures of the different nations in the region. It was a tribute to the determination of the Chief Justices that they were able to reach agreement on the minimum standards necessary to secure judicial independence in their respective countries.

19. Judges’ Charter in Europe (1993)

The European Association of Judges has adopted the Judges’ Charter in Europe (1993)[41], which recalls that “the independence of every Judge is unassailable. All national and international authorities must guarantee that independence.” The Charter aims at defining a certain number of fundamental principles while taking into account the existing differences among European States as a result of differing legal traditions and practices.

20. Caracas Declaration (1998)

In Latin America, the Caracas Declaration (1998)[42] was adopted at the 1998 Ibero-American Summit of Presidents of Supreme Justice Tribunals and Courts. The Declaration aims at creating a framework for the enforcement of the principles contained in the Declarations of the Ibero-American Heads of States[43] and Governments regarding the administration of justice, thus establishing mechanisms strengthening the judiciaries of Ibero-American States. The main recommendations cover a variety of issues related to judicial independence in Ibero-American States, including judicial independence, formation and training, alternative conflict resolution, and corruption. The Ibero-American Supreme Courts and Tribunals attending this Summit, aware that autonomy and independence of the Judicial Power are essential premises for their effective functioning, formulate the following policies:

a. In order to ensure the judicial independence, it is necessary to apply and create norms, which ensure the self-government of the judicial power and regulate access to the administration of justice, respect to the judge’s stability, and to the judicial career, as well as permanent training of its administrative and jurisdictional personnel…

b. To strengthen the professional vocation of the Judge as guarantor of the independence of the Judicial Power…”

21. Beirut Declaration (1999)

In the Middle East, the “Beirut Declaration” (1999)[44] was the result of the debates of a conference on “The Judiciary in the Arab Region and the Challenges of the 21st Century” hosted by the Lebanese Bar Association in Beirut in June 1999. The Arab Center for the Independence of the Judiciary and the Legal Profession convened the conference to which and 110 Arab jurists from 13 Arab States participated. The Declaration called upon Arab States “to include the UN Basic Principles on the Independence of the Judiciary into Arab constitutions into Arab constitutions and laws, and in particular, to penalize any interference in the work of the judiciary…” The main recommendations issued in the Declaration covered issues, including judicial appointment, security of tenure, training, freedom of association and judicial resources.

9. Some Suggestions

With the aim of strengthening the ability of the judiciary to perform its constitutional duties, a set of universally accepted international and constitutional judicial independence norms should be implemented. These are some suggestions for which every country’s three branches of government should be humble to implement them:-

(1) There should not be any inappropriate interference with the judicial process by either public officials of other branches of government or private individuals or entities. Nor should judicial decisions be subject to revision, except upon appellate review.

(2) Judges should perform their duties free from improper influences and without undue delay. They should ensure that judicial proceedings are conducted fairly and that the rights of parties are respected.

(3) Not only must judges be impartial, they must be seen by all to be impartial. Accordingly, in the exercise of their rights to freedom of expression, belief, association and assembly, judges should conduct themselves in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary.

(4) Tribunals that do not use the duly established procedures of the legal process should not be created to displace the jurisdiction of the ordinary courts, nor should judicial power be vested in organ by their very nature of their appointment are incapable to exercise.

(5) Governments are obliged to provide adequate resources to enable the judiciary to perform its functions properly. Resources and career incentives at present, including salaries, benefits and court facilities, are not adequate and they should never be reduced.

(6) Persons selected for judicial office should be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection or promotion should be based on objective factors, in particular, ability, integrity and experience, and shall include safeguards against improper influences.

(7) Judges must have guaranteed tenure until retirement or the expiration of their term of office, where such exists.

(8) Judges should enjoy personal immunity from civil suits for acts or omissions in the exercise of their judicial functions.

(9) Judges shall be subject to suspension or removal only for reasons of incapacity or behavior that render them unfit to discharge their duties. Judges have the right to a fair and expeditious hearing concerning complaints or charges against them. All disciplinary, suspension and removal proceedings shall be determined in accordance with established standards of judicial conduct.

(10) Legislation, judicial information and court decisions should be made available to the public.

(11)  Decisions of the courts should be enforced fairly and effectively.

(l2) Governmental and Non-Governmental groups must vigilantly safeguard the independence of the judiciary and the rule of the law. The three branches of government, individually and collectively, all have a solemn and legal responsibility to respect and uphold a state’s constitution.

(13) Implementing these goals and giving real meaning to the concept of the rule of law and judicial independence will require ongoing attention and oversight by individuals, governmental and non-governmental groups, as well as an independent media.

(14) The leadership of each country’s three branches of government, as well as civil society and the media should make every effort to ensure these constitutional principles are respected and implemented in practice.

(15)Each state should support the creation of country rule of law that bring together well respected representatives of all three branches of government, as well as civil society, to promote, monitor and annually publicly report on each country’s progress in implementing these principles.

(16) Though the judicial independence principles are not exhaustive by any means, every country should respect these norms as fundamental, universally accepted and relatively no controversial.

10. Conclusion

The independence of the judiciary is a cornerstone of a democratic system. The court and the judges should exercise their functions free from direct or indirect interference by any person or entity. This freedom should be applied both to the judicial process in pending cases, including the assignment of cases to particular judges. A court should be free to determine the conditions for its internal administration, including staff recruitment policy, information systems and allocation of budgetary expenditure. The court and the judges should be entitled and required to maintain the confidentiality of their deliberations.

In a country like Nepal challenges to the independence of the judiciary have occurred mainly because the standards have not been well discussed. Recent challenges are complex and multifaceted. However, problematic the current situation can be viewed as an opportunity to revisit the standards of independent judiciary, and courts can use this as opportunity to educate the nation about our evolving judicial heritage and its importance and relevance. The people have to value an independent judiciary and be willing to defend it. And to win public affection, the judges must do their jobs well. People must feel that they can resolve disputes satisfactorily and in a reasonable amount of time. It is not enough for the judiciary to be independent of the executive and of all other external influences. The Judges, because of the high office they hold and the plenitude of powers they exercise, must be seen to have qualities of excellence of mind and heart.

Lastly, greater political will is needed for enhancement of judicial independence. The inadequate quality of judicial performance and allegation of corruption have reduced the public confidence in the judiciary and as a result created obstacles for access to justice, especially for the poor and vulnerable. This has called for a greater degree of judicial accountability and more effort from the judiciary itself. There must be greater awareness among the political and judicial leaders as well as the public of the significance of an independent judiciary. Both the governors and the governed must understand that they need an independent judiciary to uphold the rule of law and protect human.

[1] Excerpt from: Legal Words Dictionary, Reed International Books, http://www.butterworths.com.au/legalwords/html/000801.htm (1st May, 2007)

[2] Excerpt from: An Independent Judiciary: Report of the Commission on Separation of Powers and Judicial Independence, Chicago: American Bar Association, 1997 (pp. ii-iii).

[3] Excerpt from: Brennan Center for Justice Resources: Questions and Answers about Judicial Independence. http://www.brennancenter.org/resources/resources_jiqanda.html 2001 (3rd May 2007)

[4] Excerpt from: League of Women Voters: Creating A Just Society: Judicial Independence. http://www.lwv.org/join/judicial/ 2001 (2nd May 2007)

[5] Excerpt from: The World Bank Group – Legal Institutions of the Market Economy. Judicial Independence: What It Is, How It Can Be Measured, Why It Occurs. http://www1.worldbank.org/publicsector/legal/judicialindependence.htm 2001 (1st May 2007)

[6] Excerpt from: American Judicature Society: Center for Judicial Independence. What is Judicial Independence? http://www.ajs.org/cjiJI.html 2001 (1st May 2007)

[7] Excerpt from: United Nations Office of the High Commissioner for Human Rights. Basic Principles on the Independence of the Judiciary. (Endorsed by UN General Assembly 1985) http://www.unhchr.ch/html/menu3/b/h_comp50.htm (1st May 2007)

[8] Excerpt from: G. Alan Tarr. “Judicial Independence and State Judiciaries,” in Judicial Independence: Essays, Bibliography, and Discussion Guide (Teaching Resource Bulletin #6). Chicago: American Bar Association Division for Public Education, 1999.

[9] Excerpt from: James Madison. The Federalist No. 78, at 469.

[10] Excerpt from: Honorable Stephen G. Breyer. “Comment: Liberty, Prosperity, and a Strong Judicial Institution,” in Judicial Independence and Accountability, Law and Contemporary Problems, Volume 61, Number 3 (Summer 1998).

[11] Bruce Fein and Burt Neuborne, “Why Should We Care About Independent and Accountable Judges,” Judicature, Volume 84, No. 2 (Sept-Oct 2000).

[12] Excerpt from: Honorable Anthony M. Kennedy. Address to American Bar Association symposium, Bulwarks of the Republic: Judicial Independence and Accountability in the American System of Justice, held December 4-5, 1998, Philadelphia, Pennsylvania.

[13] Excerpt from: John Marshall, address to the Virginia State Convention of 1829-30. Proceedings and Debates of the Virginia State Convention of 1829-30 at 616 (1830).

15 Mistretta v. United States, 488 U.S. 361, 407 (1989)

[15] Maurice Vile, Constitutionalism and the Separation of Powers, 1967, extracts in Winterton et al, Australian Federal constitutional Law: Commentary and Materials, Law Book Company, Sydney, 1999

[16]  Universal Declaration of Human Rights, 12/10/1948, United Nations, G.A. res. 217A(III)

[17]  International Covenant on Civil and Political Rights, 12/16/1966, United Nations, GA resolution 2200A (XXI), 21 UN GAOR Supp. (No.16) at 52, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force on March 23, 1976

[18]  Paragraph 27, Vienna Declaration and Program for Action in 1993

[19]  European Convention for the Protection of Human Rights and Fundamental Freedoms, 11/04/1950, Council of Europe, European Treaty Series no.5, entered into force on March 9, 1953

[20]  Inter-American Convention on Human Rights, 11/22/1969, OAS Treaty Series No.36, 1144 U.N.T.S. 123, reprinted in Basic Documents in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), entered into force on July 18,1978

[21]  African Charter on Human and People’s Rights, 06/27/1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force on October 21, 1986

[22]  UN Basic Principles on the Independence of the Judiciary, 7th UN Congress on the Prevention of Crime and the Treatment of Offenders, Milan, Italy, 08/26 09/06/1985, GA resolutions 40/32 of 11/29/1985 and 40/146 of 12/13/1985, UN GAOR, 40th Session, Supp. no.53, UN Doc. A/40/53 (1985)

[23] Principle 1-UNBP,1985

[24] Commonwealth Law Ministers’ and senior Officials Meeting in London in November 1999, 2001& 2002.

[25]  Recommendation No. R (94)12 of the Committee of Ministers to Member States on the Independence, Efficiency and Role of Judges, 10/13/1993, 518th Meeting of the Ministers’ Deputies, Council of Europe

[26] Principle 1, Council of Europe Recommendation (1994)

[27] European Charter on the Status of Judges, DAC/DOJ (98) 23, 07/08-10/1998, Strasbourg, Council of Europe

[28] Article 2,  Syracuse Principles (1981)

[29] Code of Minimum Standards of Judicial Independence, “New Delhi Standards”, New Delhi, India, 1982

[30] Statement of Principles of the Independence of the Judiciary in the LAWASIA Region, 07/17-18-1982, Tokyo, Japan, LAWASIA Human Rights Standing Committee

[31] Universal Declaration on the Independence of Justice, Montreal, Canada, 1983, World Conference on the Independence of Justice

[32] 2.14(a)

[33]  Article 2.11

[34] Article 2.13

[35] Article 1 of the Universal Charter of the Judge, 1999

[36] Id, Article 2

[37] The Bangalore Principles of Judicial Conduct, 2002

[38] Article 10 of the Tokyo Principles (1982)

[39] Id.

[40] Statement of Principles of the Independence of the Judiciary in the LAWASIA Region, “Beijing Principles”, 1995, 6th Conference of Chief Justices of Asia and the Pacific Region

[41]  Judges’ Charter in Europe, 03/20/1993, European Association of Judges

[42] Caracas Declaration, 03/04-06/1998, Ibero-American Summit of Presidents of Supreme Justice Tribunals and Courts, Caracas, Venezuela

[43] Organization of Ibero-American States for Education, Science and Culture is an international organization comprising Spanish and Portuguese speaking nations of Americas and Europe plus Equatorial Guinea in Africa.

[44] Recommendations of the First Arab Conference on Justice, “Beirut Declaration”, 06/14-16/1999, Conference on “The Judiciary in the Arab Region and the Challenges of the 21st Century”, Beirut, Lebanon