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J u d i c i a l i n d e p e n d e n c e Tom Perry Commonwealth Governance Handbook 2014/15 19 Magistrate Petelo Pa’anga Soakimi in the Magistrates Court, Nuku’alofa, Tongatapu, Tonga developing a model law on Judicial Services Commissions to deal with the appointment and removal of judicial officers. Better communication An independent judiciary cannot operate in a vacuum and must interact with other stakeholders to ensure the good administration of justice. The Latimer House Principles, and subsequent plans of action7 developed by Commonwealth associations8, provide best practice in the relationship between the three organs of state. At its conference in Nairobi in October 2014, and in line with the Latimer House Principles, the East African Magistrates and Judges Association recommended that while judicial independence should not be compromised, there was room for collaboration and cooperation with the other organs of state in furthering the good administration of justice, and in ensuring that each organ of state understands and respects the others. At the CMJA Conference held in Livingstone, Zambia, in September 2014, the CMJA’s president, the Hon. John Vertes, outlined the important role that the heads of the judiciary have to play in ensuring the judiciary remains independent and respected as a separate institution.9 Individual independence The personal independence of each judge is as important as institutional independence. Terms and conditions of service (including salaries and pensions) must be guaranteed, security of tenure has to be respected and judicial officers must receive the required training to ensure that they are able to fulfil their functions. The UN Basic Principles also state that judges should be immune from prosecution for fulfilling their judicial functions.10 This does not mean, however, that individual judges or the judiciary as a whole are not accountable for their actions. The extraordinary power invested in the judicial office demands a high standard of behaviour. However, judicial officers are human beings, subject to the same pressures and vulnerabilities that other human beings are subject to, all the while being asked to resolve difficult legal disputes with the wisdom of Solomon. Ethical behaviour and anti-corruption In her report to the Human Rights Council of April 2014, special rapporteur on the independence of judges and lawyers Mrs Gabriella Knaul states that the judge’s duty is ‘the fair and impartial application of the law. Judges must therefore be accountable for their actions and conduct, so that the public can have full confidence in the ability of the judiciary to carry out its functions independently and impartially.’11 Over the last 30 years Commonwealth judiciaries have developed ethical guidelines for their conduct within and outside of court. Since 1998 the CMJA has been the repository of these guidelines, which are refined and amended on a regular basis. Judicial independence and impartiality are essential to ensure that the public has confidence in the judiciary. This ‘implies that judges must not harbour preconceptions about the matter put before them, and that they must not act in ways that promote the interests of one of the parties’.12 Judicial officers across the


CEP template 2012
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