D emo c r a c y a n d t h e r u l e o f l aw The status of the lower judiciary Commonwealth are guided by these principles, which can be found in the oaths of office they swear on appointment. Corruption continues to be endemic in parts of the Commonwealth despite efforts to eliminate it. The Commonwealth Limassol Conclusions13 set out a number of recommendations to identify strategies, best practices and actions that would achieve the objective of securing independence, integrity and accountability of judicial officers, and a judicial system free from corruption, including better and more consistent training, the development of ethical standards, security of tenure, and adequate terms and conditions of service, so that judicial officers and staff are not tempted by corruption. The Bangalore Principles of Judicial Conduct, developed under the auspices of the UN and adopted in 200214, set out the ethical standards required of judges in the fight against corruption. Conclusion Without judicial independence, judicial officers will not be able to fulfil their constitutional function to protect human rights and to ensure compliance with the law, which is required in every democracy. In the paper presented to the Commonwealth law ministers in Botswana in May 2014, the late Chief Justice of Botswana, Justice Nganunu, outlined the importance of an independent judiciary to economic development, stating that confidence in the organs of state and the rule of law ‘brings about the necessary peace and harmony to enable citizens of a country or region to take up long-term developments without fear of loss of their investments’. The Latimer House Principles state that ‘an independent, impartial, honest and competent judiciary is integral to upholding the rule of law, engendering public confidence and dispensing justice’. It is our right as citizens to ensure that the judiciary is not only de jure but also de facto the respected third pillar of democracy. Endnotes 1 Also described as ‘Judicial Officers’ in this article 2 UN Basic Principles on the Independence of Judges Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985, and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. 3 UN Basic Principles, Article 7: ‘It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions.’ 4 Latimer House Principles on the Accountability of and Relationship between the Three Branches of Government, 2003. 5 Available on the CMJA website: www.cmja.org Accessed 12 November 2014. 6 Parliamentary Supremacy and Judicial Independence: The Latimer House Guidelines for the Commonwealth, 1998. 7 For example: Nairobi Plan of Action for Africa, 2005, and the Edinburgh Plan of Action on the Development and Implementation of the Commonwealth (Latimer House) Principle, 2008. 8 CLA, CLEA, CMJA and Commonwealth Parliamentary Association. 9 See www.cmja.org for text of the Hon. John Vertes presentation. 10 Article 16: ‘Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.’ 11 Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development. Report of the special rapporteur on the independence of judges and lawyers. A/HRC/26/32. 12 Communication No. 387/1989, Arvo O. Karttunen vs Finland (views adopted on 23 October 1992), in UN doc: General Assembly Official Records, A/48/40, 2, p. 120, para. 7.2. 13 Formulated from the Commonwealth Colloquium on Combating Corruption in the Judiciary, Limassol, Cyprus 2002. 14 Available at: www.unodc.org/pdf/crime/corruption/judicial_ group/Bangalore_principles.pdf Accessed 12 November 2014. Commonwealth Governance Handbook 2014/15 20 DR KAREN BREWER is secretary general of the Commonwealth Magistrates’ and Judges’ Association (CMJA), and secretary to the Latimer House Working Group. For the CMJA and the UN, judicial officers working at all levels of the judiciary are part of the judiciary and their independence is paramount to ensure that human rights are respected. Magistrates are the first, and often the only, point of contact the public have with the judicial system, and form the backbone of all justice systems. However, Commonwealth constitutions rarely mention the independence of the lower judiciary (and in particular the magistracy), which the executive usually deems to be under its control, to be part of the civil service subject to the same terms and conditions, including removal, as civil servants. The CMJA General Assembly in Turks and Caicos ‘deplored the fact that in parts of the Commonwealth the independence of the magistracy is inadequately safeguarded and requests Council in collaboration with the Commonwealth Secretariat to take positive steps to eliminate these breaches of the Latimer House Principles wherever they occur’. Following an in-depth study, the CMJA issued a report on The Status of Magistrates’ in February 2013, which included a set of guidelines to ensure the independence and integrity of magistrates. A summarised version of the report was presented to the Commonwealth Law Ministers’ Meeting held in Sydney, Australia, in July 2011 for consideration. Law ministers agreed, as stated in paragraph eight of the Communiqué: ‘to consider taking appropriate steps to strengthen their domestic legal frameworks and other measures for assuring the independence and integrity of their magistracy in compliance with the Commonwealth fundamental values, having due regard to the suggested Guidelines.’ Progress with this commitment has been slow, with many jurisdictions continuing to treat the lower judiciary as employees of state the with few, if any, constitutional protections.
CEP template 2012
To see the actual publication please follow the link above