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The United Nations’ Role in Promoting the Independence of the Judiciary

Judges carry a heavy weight in fact-finding and legal inquiries facing judicial bodies around the globe.  They are expected to be competent, independent, fair, and impartial. While judges are human and, as each and every one of us, carry their own beliefs and biases, public trust and the rule of law are weakened where judicial actors fall short of the expectations to which they are subject.[1]

What Does an Independent Judiciary Look Like?

Judicial independence and impartiality are necessary components of a functioning democracy.[2]  In practice, judicial independence involves eliminating improper influence in judicial nomination, selection, and tenure of judges; assessing judge’s prior involvement with the parties or on the issue to be adjudicated; guidelines for judges’ involvement in outside activities; the relation between judicial and political organs, as well as other factors.[3] 

For institutional independence to be achieved, the judiciary must be administratively and financially independent, and shall be properly funded to effectively carry out its mandate with the power to decide how funds are allocated.  The judiciary must also have independent decision-making powers and the ability to independently determine its jurisdiction.  Lastly, an independent judiciary requires respect with regard to its decisions.[4]

Individual independence requires that a judge’s term of office and the length thereof is legally secure and that their remuneration is set by law.  Decisions on their careers shall be independent of improper influence from the executive or legislative branches and decisions on their selection and promotion shall be meritorious, transparent, and based on objective criteria. Judges shall be guided by established ethical principles of professional conduct. Offenses for removal shall be clearly defined and disciplinary proceedings shall be under the control of independent self-governing bodies that respect the principle of judicial independence.[5]

Why Promote the Independence of the Judiciary?

Stable Balance of Power within Governments

      In 2004, the United Nations (“UN”) General Assembly laid out the essential elements of a democracy, which includes an independent judiciary, in Resolution 59/102.  172 States voted in support, with only 15 States abstaining; no State voted against the Resolution.[6] This vote represents an international consensus on the essential meaning and functioning of a democracy.[7]

      The value of separation of powers cannot be emphasized enough. If judicial actors cannot independently perform their duties, or if court procedures are disrespected, “there is the potential for unbridled power in the hands of a few,” which can lead to abuse.[8]  Separation of powers, the rule of law, and the principle of legality are inseparable in a democratic society.[9]

      Improper influence on the judiciary further undermines governmental stability and balance of powers.[10]  For countries transitioning into democracies and market economies, judiciaries face increasing challenges with the serious crime that often follow such transitions, along with corruption adopted from old regimes and born under changing conditions.[11]  Independent and impartial judiciaries are necessary to minimize public and private corruption, reduce improper political influence, and expand the public’s faith in governmental integrity.[12]

Economic and Social Development

      While economic and social development depends on balance of payments, maintaining infrastructure, and equitable tax collection and allocation, rule of law plays a significant role as well.[13]  Enforceable laws and contracts, safety and protection of property, and access to justice are all present when the rule of law is in effect.[14]  Meaningful social and economic legislation has expanded to protect such rights domestically, accompanied by the court’s responsibility to protect those rights.[15]  In the face of increasingly complex national and international commercial economies, the judiciary has a growing responsibility for resolving disputes within and among them.[16] Independent and impartial judiciaries predictably and transparently resolve commercial disputes, encouraging fair competition and economic growth.[17]

Protect and Promote Human Rights

      Corruption comes in many forms, including bribery and political corruption. Its expansive reach influences not only the judicial system, but all parts of state administration, and directly impacts the validity of human rights.[18]  First, it diverts important resources that could be used for basic needs, such as public health, education, infrastructure, or security, from the public.[19]   According to the Organization for Economic Cooperation and Development, corruption constitutes more than 5% of the global GDP.[20]  Second, corruption damages state institutions, and in particular, the functional administration of justice as it diminishes public trust in justice and weakens judicial systems’ ability to protect human rights, affecting the capacity for judges, prosecutors, lawyers, and other legal professionals to adequately perform their tasks and duties.[21]  The United Nations Convention Against Corruption stresses that in order for the judiciary to effectively carry out its decisive role in fighting corruption, it must be free from corruption itself, and its members must honor ethics and act with integrity.[22]

The United Nations’ Role in Promoting Judicial Independence

Setting the Standard

      One strength of the United Nations is its ability to set internationally-accepted norms.  For judicial independence, Member States can look to the Basic Principles on the Independence of the Judiciary (“the Basic Principles”),[23] which “provides operational guidance on how to secure the independence and tenure of judges, addressing issues like recruitment, remuneration, promotion, immunity and removal”[24] and The Bangalore Principles of Judicial Conduct (“the Bangalore Principles”),[25] which identify six core values of the judiciary – independence, impartiality, integrity, propriety, equality, competence and diligence – and serves as a set of ethical standards to guide judges’ conduct.[26] They also provide a framework for regulating judicial conduct, educating members of the executive, the legislature, lawyers, and the general public on the judicial role, and set a standard to evaluate the judicial sector’s performance.[27]

Leading Expertise

      In addition to the Basic Principles and the Bangalore Principles, the UN Human Rights Council appointed its first Special Rapporteur on the Independence of Lawyers and Judges (“the Special Rapporteur”) in 1994, acknowledging increasing attacks on judges, and the relation between weakened safeguards for the judiciary and the severity of human rights violations.[28]  The appointment has continually been renewed and is presently held by Diego García-Sayán, whose experience includes serving as a judge on the Inter-American Court of Human Rights and working as the Minister of Justice during Peru’s democratic transition.[29]  The Special Rapporteur’s mandate includes identifying attacks on the independence of lawyers, judges, and court officials; making concrete recommendations to improve the judicial system; and  reporting regularly on their program of work.[30]  When the Special Rapporteur receives an individual complaint relating to judicial independence and impartiality, he or she will raise the issue with the concerned government.[31]  In addition, the Special Rapporteur makes country visits and then reports on their observations and conclusions and makes thematic reports to the Human Rights Council and the General Assembly.[32]  Over the years, these thematic reports have concerned legal aid and access to justice; separation of powers; independence of the legal profession; gender and the justice system; the role of criminal justice in combating impunity; human rights under states of emergency; and military tribunals.[33]

Principles of International Law and Experts on Judicial Independence Should Be Paid Due Respect and Consideration by Member States

      As mentioned, principles on judicial independence set norms for the international community, but those standards are meaningless if States do not implement them.  States should review the Basic Principles and the Bangalore Principles and adapt them to fit their domestic judicial structures in accordance with domestic and international obligations.  The Judiciary of England and Wales has put forth a Guide to Judicial Conduct, which acknowledges that the judiciary and the other branches should have a relationship of mutual respect, each recognizing the proper role of the others.[34]  Additionally, the Bologna and Milan Code of Judicial Ethics outlines financial activities from which judges should refrain to maintain their impartiality and provides accountability measures for use in the event of improper influence on the judiciary.[35]

      Similarly, domestic judiciaries should give attention and respect to recommendations made by the international community, the Special Rapporteur, and UN experts.  States should consider issues of concern when developing and implementing their own judicial systems and ethical codes and use recommendations by the international community as a tool to further improve existing judiciaries.

      To the dismay of the international community, Poland’s Law and Justice Party (“PiS”), which is currently in power, “has waged a campaign to take control of the Polish judiciary in open defiance of the law, the constitution, and the courts.”[36]  Special Rapporteur García-Sayán has acknowledged Poland’s right to judicial reform[37] but stresses the serious undermining of judicial independence caused by PiS’s campaign to delegitimize the judiciary’s authority.[38]  Up until February 2018, The Court of Justice of the European Union (“ECJ”) could not rule on problems concerning the independence of the judiciary in a European Union Member State, as it has historically been a domestic issue and thus outside of the Court’s purview.[39]  Since then however, the ECJ ruled to reinstate top judges in Poland after they had been forced to retire.[40]  The tug of war between Poland and the broader international community doesn’t seem to be ending soon.[41]

      On another front, when the former President of Peru, Alberto Fujimori, was granted a pardon for his conviction based on serious crimes against humanity despite his trial having been fair and with due process,[42] street protests ensued, and state security forces violently reacted against peaceful demonstrations.[43]  UN experts condemned the pardon, calling it a “slap in the face to victims of human rights abuses.”[44]  In October 2018, Peru’s Supreme Court overturned the pardon and ordered Fujimori to complete his sentence.[45] 

      While several factors were at play in the annulment of Fujimori’s pardon, the UN wields a strong force in dictating what is acceptable regarding the rule of law and judicial independence and in declaring what will not stand.  The ECJ demonstrated similar influence over Polish judicial reforms,[46] making the case for respect towards regional organizations like the European Union.  As Poland and other nations such as neighboring Hungary, turn towards illiberalism and threaten an increasingly divided global community partially by way of judicial reforms,[47] States must promote the legitimacy of regional organizations and the UN, and in accordance with their international and domestic obligations, maintain independent and impartial judiciaries to uphold the rule of law and support stable governments, promote economic and social development, and protect human rights.

Morganne Barrett is a Crowley Scholar for International Human Rights and a Stein Scholar for Ethics and Public Interest. She is a Staff Member for Fordham International Law Journal and works as a Research Assistant for the Leitner Center for International Law and Justice.

 This post is a student blog post and in no way represents the views of the Fordham International Law Journal.

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[1] Debra Lyn Bassett and Rex P. Perschbacher, Perceptions of Justice: An International Perspective On Judges and Appearances, 36 Fordham Int’l L.J. 136 (2013).

[2] Michael Meyer-Resende, International Consensus: Essential Elements of Democracy, Democracy Reporting Int’l, Oct. 2011, at 6.  Available at: http://www.concernedhistorians.org/content_files/file/TO/333.pdf.

[3] Ruth Mackenzie and Philippe Sands, International Courts and Tribunals and the Independence of the International Judge, 44 Harv. Int’l L.J. 271 (2003).

[4] Thorbjørn Jagland, State of Democracy, Human Rights and the Rule of Law: Role of institutions, threats to institutions, Council of Europe, 2018, at 14. Available at: https://rm.coe.int/state-of-democracy-human-rights-and-the-rule-of-law-role-of-institutio/168086c0c5.

[5] Id.

[6] Meyer-Resende, supra note 2.

[7] Id.

[8] Gabriela Knaul, Independence of judges and lawyers, UN Gen. Assembly, A/70/263 (Aug. 2015), https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/241/81/PDF/N1524181.pdf?OpenElement.

[9] Leandro Despouy, Report of the Special Rapporteur on the independence of judges and lawyers, Comm. on Hum. Rts., E/CN.4/2004/60 (Dec. 2003), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G04/100/26/PDF/G0410026.pdf?OpenElement.

[10] Guidance for Promoting Judicial Independence & Impartiality, U.S. Agency for Int’l Dev., Jan. 2002, at 6.  Available at: http://www.ifes.org/sites/default/files/judicial_independence.pdf

[11] Id.

[12] Id.

[13] Maria Dakolias, Speech to the EU Judiciaries Representatives at The Hague, The Netherlands regarding The Role of the Judiciary for Economic and Social Development (Nov. 14, 2003) (transcript available at http://siteresources.worldbank.org/INTLAWJUSTINST/Resources/MDHague-RuleofLaw.pdf).

[14] Id.

[15] U.S. Agency for Int’l Dev., supra note 10.

[16] Id.

[17] Id.

[18] Diego García-Sayán, Corruption, Human Rights, and Judicial Independence, A/72/140.35, U.N. Office on Drugs & Crime, July 2017.  Available at: https://www.unodc.org/dohadeclaration/en/news/2018/04/corruption--human-rights--and-judicial-independence.html.

[19] Id.

[20] CleanGovBiz, The Rationale for Fighting Corruption, Org. for Economic Cooperation & Dev., 2014, at 2.  Available at: https://www.oecd.org/cleangovbiz/49693613.pdf.

[21] García-Sayán, supra note 18.

[22] Id.

[23] G.A. Res. 40/32, Basic Principles on the Independence of the Judiciary (Nov. 29, 1985); G.A. Res. 40/146, Basic Principles on the Independence of the Judiciary (Dec. 13, 1985).  Available at: https://www.ohchr.org/en/professionalinterest/pages/independencejudiciary.aspx.

[24] Meyer-Resende, supra note 2 at 10.

[25] The Bangalore Principles of Judicial Conduct, Judicial Group on Strengthening Judicial Integrity, 2002.  Available at: https://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf.

[26] Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct, The Judicial Integrity Group, Jan. 2010, at 3.  Available at: https://www.yargitay.gov.tr/documents/bangaloreetigi.pdf.

[27] Id.

[28] Special Rapporteur on the Independence of Judges and Lawyers, U.N. Office of the High Comm’r. on Hum. Rts., https://www.ohchr.org/en/issues/judiciary/pages/idpindex.aspx (last visited: November 20, 2018).

[29] Mr. Diego García-Sayán, Special Rapporteur on the independence of judges and lawyers, U.N. Office of the High Comm’r. on Hum. Rts., https://www.ohchr.org/EN/Issues/Judiciary/Pages/DiegoGarciaSayan.aspx (last visited: November 20, 2018).

[30] U.N. Office of the High Comm’r. on Hum. Rts., supra note 28.

[31] Id.

[32] Id.

[33] Special Rapporteur on the Independence of Judges and Lawyers Annual reports to the Human Rights Council, U.N. Office of the High Comm’r. on Hum. Rts., https://www.ohchr.org/EN/Issues/Judiciary/Pages/Annual.aspx (last visited: November 20, 2018).

[34] Guide to Judicial Conduct, Judiciary of England & Wales (Mar. 2013).  Available at: https://www.judiciary.uk/wp-content/uploads/JCO/Documents/Guidance/judicial_conduct_2013.pdf.

[35] See generally, Bologna & Milan Global Code of Judicial Ethics, Int’l Comm. of Jurists (2015).  Available at: https://www.icj.org/wp-content/uploads/2016/02/Bologna-and-Milan-Global-Code-of-Judicial-Ethics.pdf.

[36] Christian Davies, Hostile Takeover: How Law and Justice Captured Poland’s Courts, Freedom House, May 2018.  Available at: https://freedomhouse.org/sites/default/files/poland%20brief%20final.pdf.

[37] Presentación del Sr. Diego García-Sayán, Relator Especial sobre la independencia de los magistrados y abogados al 38ª sesión del Consejo de derechos humanos, U.N. Office of the High Comm’r. on Hum. Rts., June 22, 2018. Available at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/084/27/PDF/G1808427.pdf?OpenElement.

[38] UN expert welcomes European Court’s ruling to reinstate top judges in Poland, U.N. Office of the High Comm’r. on Hum. Rts., Oct. 23, 2018. Available at: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23753&LangID=E.

[39] See Associação Sindical dos Juízes Portugueses v. Tribunal de Contas C-64/16, 2018 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A62016CJ0064.

[40] Id.

[41] EU court orders Poland to halt court retirements law, BBC News, Oct. 19, 2018.  Available at: https://www.bbc.com/news/world-europe-45917830.

[42] Peru: UN human rights experts appalled by Fujimori pardon, U.N. Office of the High Comm’r. on Hum. Rts., Dec. 28, 2017.  Available at: https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22568&LangID=E.

[43] Peru: UN experts say Fujimori ruling restores justice, U.N. Office of the High Comm’r. on Hum. Rts., Oct. 9, 2018.  Available at: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23700&LangID=E

[44] U.N. Office of the High Comm’r. on Hum. Rts., supra note 42.

[45] U.N. Office of the High Comm’r. on Hum. Rts., supra note 43.

[46] Associação Sindical dos Juízes Portugueses, C-64/16.

[47] Ivan Krastev, Eastern Europe's Illiberal Revolution: The Long Road to Democratic Decline, Foreign Affairs, May/June 2018.  Available at: https://www.foreignaffairs.com/articles/hungary/2018-04-16/eastern-europes-illiberal-revolution.