Asia Pacific Judicial Reform – Singapore
Conference – Jan. 2009
The Bangalore Principles of Judicial Conduct
by
Param Cumaraswamy
This subject is not new before the eminent jurists of India.
Canon’s of Judicial Ethics was the subject of the first MC Setalvad
Memorial Lecture delivered here in Delhi in 2005 by the then Chief
Justice Hon’ble Shri R.C. Lahoti. In that lecture the Chief Justice most
admirably captured with succinct lucidity the essence of ethical values
for judicial officers as a prerequisite for dispensation of justice by an
independent and impartial judiciary.
On codification of judicial ethics the Chief Justice said:
“Canons of judicial ethics have been attempted, time
and again, to be drafted as a Code.
Several
documents of authority and authenticity are available
as drafted or crafted by several fora at the national and
international level. The fact remains that such a code
is difficult to be framed and certainly cannot be
consigned to a straitjacket. Mostly these canons have
originated in and have been handed down by
generation after generation of judges by tradition and
conventions. If any reference is required to be made
to documents, I would choose to confine myself by
referring to three of them:(i)
Restatement of Values of Judicial Life adopted by
the Chief Justices’ Conference of India, 1999;
(ii)
The Bangalore Principles of Judicial Conduct,
2002;

Text previously presented by the writer at a Judicial Ethical Standards programme in
New Delhi on November 23-24, 2007
former UN Special Rapporteur on the Independence of Judges & Lawyers.
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(iii)
The Oath of a Judge as contained in the Third
Schedule of the Constitution of India.”
The Chief Justice briefly, again very succinctly, described how
the Bangalore Principles developed. I will expand a little further on the
background to the development and drafting of the Principles and its
present status.
During my tenure as the UN Special Rapporteur on the
Independence of Judges and Lawyers and since 2000 in my annual
reports to the UN Commission on Human Rights I expressed, inter alia,
about the growing concerns over judicial corruption and about member
States seeking greater accountability from the judiciary. This issue
was on the agenda of the Ninth International Anti-Corruption
Conference organized by Transparency International (TI) in Durban,
South Africa in October 1999. I participated in that programme. TI was
then pursuing ways to curb corruption in the judicial systems and
sought partnerships with like mind institutions and NGOs including the
UN Centre for Crime Prevention and Criminal Justice, the UNDP, the
ICJ, the Commonwealth Secretariat and financial institutions like the
World Bank and the Asian Development Bank.
The Centre for the Independence of Judges and Lawyers (CIJL)
of the ICJ in co-operation with TI convened a workshop of experts in
Geneva in February 2000 to consider a framework to strengthen
judicial independence and eliminate judicial corruption. I participated in
that workshop of fifteen experts from the regions. At the conclusion a
Policy Framework for Preventing and Eliminating Corruption and
Ensuring the Impartiality of the Judicial System was adopted. (See
CIJL Year Book 2000 Volume IX).
Following that workshop a Judicial Group for the Strengthening
of Judicial Integrity (JGSJI) comprising of ten senior judges including
Chief Justices from Asia and Africa was set up. They were all from the
common law countries. It was chaired by H.E. Judge Weeramantry, a
former Vice-President of the International Court of Justice, the
Rapporteur was the Hon. Justice Michael Kirby of the High Court of
Australia and the Coordinator Dr. Nihal Jayawickrama. This group met
for the first time in Vienna in April 2000 at a workshop organized within
the framework of the Global Programme Against Corruption and in
conjunction with the Tenth UN Congress on Prevention of Crime and
Treatment of Offenders. It was funded by the UN Centre for Crime
Prevention and Criminal Justice. I attended and participated in that
Workshop though on an observer status.
In my report to the Commission at its fifty-seventh Session 2001
I again drew attention to the growing concerns over judicial corruption
and calls for formal mechanisms to deal with complaints against
judges.
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Following its Workshop in Vienna the JGSJI met in Bangalore,
India, in February 2001 where it deliberated on and endorsed a draft
code of judicial conduct which came to be known as the Draft
Bangalore Code.
During the fifty-eighth session of the Commission 2002 I drew
attention to the Draft Bangalore Code at my meetings with the various
regional groups and distributed a copy of the code to interested
member States. There was considerable interest expressed. In my
report to the Commission I also drew attention to the fact that I
intended to develop this code further to ensure universal acceptance of
the principles contained therein.
Realizing that the Draft Bangalore Code was based substantially
on the common law tradition and needed input from other legal
traditions, particularly the continental civil law system, in order to
achieve universal acceptance, I sought the assistance of the Council of
Europe. The Council readily cooperated. On 18 and 19 June 2002
together with the Coordinator of the Judicial Group, we attended a
meeting in Strasbourg with the Working Party of the Consultative
Council of European Judges. This 40-member council advises the
Committee of Ministers of the Council of Europe on judicial matters. At
the meeting the Draft Bangalore Code was discussed and it was
followed by the working party’s submitting its views on the code in
writing. This submission was most useful from the Civil Law System
perspective. Earlier, in February 2002, through the American Bar
Association and Central and Eastern European Law Initiative
(ABA/CEELI) I sought the views of the judges of the Central and
Eastern European countries. ABA/CEELI subsequently submitted the
views of some of the judges in that region and in particular judges from
Bosnia and Herzegovina, Bulgaria, Croatia, Kosovo, Romania, Serbia
and Slovakia.
In November 2002 a meeting of several Chief Justices and
senior judges from the civil law system was convened at the Peace
Palace at The Hague by the JGSJI to consider the Draft Bangalore
Code in the light of the submissions by the Working Party of the
Consultative Council and ABA/CEELI. Among the Chief Justices
present at this meeting were the Chief Justices of Brazil, the Czech
Republic, Egypt, Mexico, Mozambique, the Netherlands and the
Philippines. Some judges of the International Court of Justice,
including its then Vice President H.E. Judge Shi Jiuyong from China,
attended part of the meeting and expressed their views on the Draft
Bangalore Code. Senior judges from France and Norway also
attended and participated in the meeting. This meeting revised the
Draft Bangalore Code and renamed it the Bangalore Principles of
Judicial Conduct.
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The JGSJI met again in Colombo in January 2003. Among
those who attended that meeting was former Chief Justice of India,
P.N. Bhagwati. At that meeting over 2 ½ days the revised Bangalore
Principles at the Hague was carefully considered and approved.
It is worthy of note that during its deliberations over a period of
2 ½ years in the consultations and drafting process the JGSJI had the
benefit of studying reports initiated by Uganda, Nigeria and Sri Lanka
on pilot projects to strengthen judicial integrity and capacity.
As the principles set out in this document had the general
support of eminent Chief Justices and senior judges of many of the
States of the two major legal traditions, namely the common law and
the civil law, I urged the Commission at its fifty-ninth session 2003 to
endorse, or at least take note, of this document in its resolution on the
mandate. I expressed that the principles set out in this document
would go some way, when adopted and applied in member States, to
support the integrity of judicial systems and could be used to
complement the United Nations Basic Principles on the Independence
of the Judiciary to secure greater judicial accountability.
There was unanimous support for these Principles from member
States present at the fifty-ninth Session. During the interactive
dialogue after the presentation of my report I was asked for my views
on the ways in which the Principles could be effectively disseminated. I
expressed that the Principles should be brought to the attention of
judiciaries.
The judiciaries should be encouraged to initiate
incorporation of the Principles into their codes of conduct, if they are
not already. I emphasized that the initiative should come from the
judiciaries.
Subsequently in its resolution the Commission noted these
Principles and called upon member States, the relevant UN organs,
intergovernmental organizations and non-governmental organizations
to take them into consideration.
In April 2006 the Principles were endorsed by ECOSOC. The
UN General Assembly is expected to endorse them soon. In March
2007 the JGSJI published a commentary on the Principles. The
commentary on each of the Principles also illustrates, where available,
best practices of judicial conduct. (The Commentary can be accessed
at:http://www.coe.int/t/dg1/legalcooperation/judicialprofessions/ccje/textes/Bangalore
PrinciplesComment.)
The Bangalore Principles are comprehensive and set out what
are today considered as universal standards of judicial conduct for
judges whether in national, regional or international tribunals. More
States are incorporating the Principles in their domestic code of ethics
for judges. Compliance with a code of ethical values will enhance
judicial integrity.
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Justice Thomas of the Supreme Court of Queensland was
quoted by Chief Justice Lahoti in his lecture as having said that there
are two key issues that must be addressed with regard to judicial
ethics: (1) the identification of standard to which members of the
judiciary must be held; and (2) a mechanism, formal or informal, to
ensure that these standards are adhered to.
The Bangalore Principles identify six values each with a
principle and how the principle is to be applied. The six values are:
independence, impartiality, integrity, propriety, equality, competence
and diligence.
It also provides for implementation which reads:
“By reason of the 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”.
A code for judicial conduct without an effective monitoring and
enforcement mechanism will remain and be seen as a set of pious
platitudes. Establishment of a formal judicial complaints mechanism is
not inconsistent with judicial independence under international or
regional standards. Principles 23-28 of the Beijing Principles imply
some guidelines for such a mechanism. Often constitutions provide for
a mechanism for impeachment of judges but not for misconduct falling
short of impeachable misconduct. In this regard judges should take the
initiative before it is forced upon them by political forces.
In South Africa the judges themselves drafted a legislation to
provide for a judicial complaints commission. There was however a
dispute between the executive and the judiciary as to the composition
of the commission. The judges wanted the composition entirely of
sitting judges. The executive felt that it should not be left entirely with
the judges as that would negate transparency. Though self-regulation
and self-discipline has come under criticism in the face of greater need
for transparency and accountability yet in my capacity as Special
Rapporteur then I recommended that judges who took the initiative to
draft the legislation for such a mechanism should be entrusted to selfregulate the mechanism and self-discipline under the same for an initial
period of at least seven years. Thereafter the effectiveness of the
mechanism could be reviewed.
The need for a separate complaints mechanism for judges is the
subject of debate in many countries including the United Kingdom, New
Zealand, Australia, Ireland and India. In some jurisdictions informal
mechanisms have been set up. But these are seen unsatisfactory.
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The insulations judges are provided to protect their judicial
independence and impartiality are founded on public policy. Public
policy can change with times. The discerning public today has high
expectations of the judiciary. If judges by their performance and
conduct do not meet those expectations the insulations will slowly be
whittled away.
Good judges do not fear public scrutiny of their performance and
conduct. What they fear is the presence of bad judges amidst them in
the system. Gross misconduct of one single judge remaining in the
system without action being taken can tarnish the image of the entire
institution including the image of individual judges in the system. It
maybe for this reason that the American Bar Association in its Model
Code of Judicial Conduct (1990) has the following rule:
“3(D)(1) A judge who receives information indicating a
substantial likelihood that another judge has committed a
violation of this code should take appropriate action. A
judge having knowledge that another judge has
committed a violation of this Code that raises a
substantial question as to the other judge’s fitness for
office shall inform the appropriate authority”
Let me conclude by reference to the opening words of Chief
Justice R.C. Lahoti’s Setalvad Memorial Lecture. He said that when he
was given the topic “Canons of Judicial Ethics” he was amused. He
asked “who talks of ethics these days and who listens to ethics?” In
the light of developments across the regions resulting in the drafting
and adoption of the Bangalore Principles to promote greater judicial
accountability and thereby secure judicial integrity for the protection of
judicial independence the jury is out there watching, talking about and
listening to ethical conduct of their judges.
~~~ooOoo~~~
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