First consultation for the Asian Charter on the Rule of Law, Hong Kong
Twenty-three persons from Cambodia, China, Bangladesh, India, Indonesia, Philippines, South Korea, Sri Lanka and Thailand gathered in Hong Kong from 16-21 February 2006 for the first consultation towards the Asian Charter on the Rule of Law. In October 2005 the Asian Human Rights Commission (AHRC) proposed that the charter be drafted, having realized from years of work that discussions on protecting human rights have limited meaning if they do not address the obstacles to developing the rule of law.
The purpose of having wide consultations prior to the drafting of this charter is to enable as many persons as possible to voice their experiences regarding the rule of law and human rights. It is hoped that the participants at these consultations will detail the manner in which the rule of law is being subverted in their countries and suggest various means through which these problems can be addressed, both by governments and independent organizations.
The first of these consultations saw intense discussion on the collapse of the rule of law in Asia. The participants–including senior retired judges, practicing lawyers and human rights advocates–went deeply into the issues affecting their different jurisdictions. They raised problems facing many institutions in their respective countries, particularly judicial institutions. They discussed the harsh realities faced by ordinary people–as well as judges and lawyers–due to defects in the policing, prosecution and judicial systems.
Midway through their deliberations the participants realized that the issues needing to be most discussed were those regarding corruption and executive control of the judiciary. They then went into the causes of judicial corruption and executive control, the manner in which this corruption and control takes place, and suggested remedies.
The participants broadly agreed that this gathering opened up new areas for further discussion, which they would take back to their countries: not just to the cities, but also the rural areas. There was also consensus to continue the discussions regionally and internationally through meetings as well as by way of print and electronic media.
The importance of discussing the judiciary
The independence of the judiciary has been a common topic in Asia, as well as in other places. However, most talk about the judiciary has followed the model of western textbooks, enumerating the characteristics of judicial independence, such as legal provisions for the separation of powers, financial independence by drawing money from a regular fund not subjected to political control, adequate remuneration for judges, and security of tenure. In recent decades there have even been gatherings of chief justices from different countries, resulting in the declaration of certain principles relating to this issue (i.e. The Bangalore Principles of Judicial Conduct, 2002).
The first consultation towards the Asian Charter on the Rule of Law took a completely different approach. By shifting the discussion from the principle of judicial independence to the need to eliminate judicial corruption and executive control, the consultation began from the day in and day out experience of people in different countries, and thereafter mapped out possible ways to eliminate the practices that negate judicial independence. It resulted in the lively debate needed to begin addressing the scale of these problems.
All the participants at the consultation based their comments and suggestions on the experiences they have had in their countries. The list of issues arising from the discussion follows. The participants articulated their problems in detail, and the substantive points identified by them have been retained.
Areas covered:
I. Definition of judicial corruption
II. Causes of judicial corruption and executive control
III. Characteristics of judicial corruption
IV. Consequences of judicial corruption and executive control
V. Recommendations for the prevention of judicial corruption and breaking of executive control
I. Definition of judicial corruption
Judicial corruption pertains to acts or behavior or attempts that impair either the search for or the submission of the truth in the delivery of justice. It covers any act or omission from any source, whether bribery, intimidation or any other act committed with the intent or reasonably foreseeable result that judicial or quasi-judicial orders, judgments and other issuances and judicial treatments will result in corruption. Judicial corruption includes the acceptance of patronage offered by people in power leading to subversion of the administration of justice. This definition covers investigation and pre-trial processes in addition to the actual trial process. The consequence is unfairness in the criminal process from start to end.
II. Causes of judicial corruption and executive control
1. No separation of powers
Without separation of powers between the judiciary and executive there are politically motivated appointments, transfers, dismissals and disciplinary control of judicial officers. As judges are appointed by the executive and endorsed by politicians, this creates a debt of gratitude that they feel obliged to repay. Judges are then called upon to perform functions and duties that are not judicial in nature. Those who refuse to oblige may be threatened. Or the judiciary may be completely subverted by emergency and anti-terrorist laws. Under such circumstances, closed hearings and secretive tribunals may be held in violation of the principle of open court. Sitting and retired judges are offered, and accept, extrajudicial positions. This situation causes insecurity and fear among judges. However, there are no measures set in place to address it.
2. Problems in appointments, remuneration and disciplinary control
Bodies with powers to appoint, promote, transfer and discipline judges are often non-functioning or malfunctioning. Judges are promoted on the basis of connections rather than merit. For this and other reasons they tend to favour the powerful over the poor and marginalized. Their tenures may also be extended beyond pensionable age, causing confusion about when retirement is mandated. Many undertake various assignments while serving because of uncertainty about conditions once they retire. Some are appointed to or near areas where they have properties and residences, causing partiality. Others hold the same post for extended periods, thereby opening many more possibilities for corruption. Judges and court staff are paid badly, but the financial pressure they experience that may affect their work is not addressed. Various perks are offered to them in order to influence the judicial process.
Some grave concerns over disciplinary control of the judiciary include that judges and lawyers interact outside of court at religious and social events, that judges have private relationships with other court staff, that relatives of judges practice in the same courts, and that judges hear cases in which they have conflicts of interest, including those of their friends or relatives.
The incompetence and arrogance of judges, sometimes caused by defects in judicial training, is also a serious concern. In complicated cases where special technical knowledge is required judges may not be capable of reaching a decision, but they may also not call expert witnesses or have lists of unbiased specialists available for the court.
However, complaints against judicial officers are not addressed promptly, very often because of the absence of any disciplinary procedure. Especially in the case of the higher judiciary and other senior judicial officers (such as ombudsmen) the lack of a disciplinary procedure–apart from impeachment–means that they enjoy impunity. There is a lack of public audits of the assets held by judges and there may also be no measures in place to confiscate assets found to have been obtained through corrupt practices.
Contempt of court is used by judges as a weapon with which to exploit or abuse their power. Other methods may also be used to intimidate the public and deny legitimate criticism. The public may be ill-informed or uninformed about court process and proceedings and so be unable to open a debate on judicial discipline. This situation is accentuated in jurisdictions where there are no juries. Persons who dare to criticize or expose wrongdoing may have no protection.
3. Procedural and material issues
Constitutional provisions provide scope for judicial corruption and executive control. Due process is thereby denied for numerous reasons. Procedural laws have not been brought into line with human rights standards. Retrospective legislation may be introduced. Defective investigations may prejudice adjudication even before it is begun: scientific facilities, such as those for forensic evidence, may be underused or non-existent; there may only be partial investigation of complaints. Courts may also lack basic equipment like fax machines, computers and recording devices. Cases are not managed impartially: benches may be fixed so that particular judges sit in particular trials, and available evidence may not be presented or properly analysed by expert witnesses. Courts may be used to harass and intimidate persons, particularly the poor, by charging them repeatedly on various related offences. Prior records may be used against such persons unfairly. Civil matters may be subjected to criminal investigation and trial. Patently innocent persons may be prosecuted, while patently guilty ones may go free. This is particularly the case where prosecution is under control of the police, or where no investigating agencies exist to address specific laws. Judges may be denied the right of judicial review and interpretation of law, thereby diminishing the importance of the judiciary in the constitutional process. Legal aid may be inadequate or non-existent, especially for foreigners and minorities. Cases may be delayed unnecessarily, sometimes due to overwork, or due to constant interruptions. Courts may be deliberately overloaded with more cases than they can hear, or be pressured to dispose of cases at an unreasonable speed, leading to unfair dismissals. Procedural gaps may be exploited to have cases closed without hearing. Judges may be given wide discretion with few guidelines on granting of bail, sentencing and punishment. Limits on retrials may culminate in miscarriages of justice. Persons who evade court after getting bail may not be pursued. Judicial orders may be obstructed by other parties.
III. Characteristics of judicial corruption
Judicial corruption and malpractice take many forms. Judgments may be given in exchange for money or other rewards, or under duress (including after retirement). Higher courts may bully lower courts, including by instructing on how cases are to be decided, or reversing lower court judgments without reason. Lower courts may subvert the appeal process and powers of summons. Judges may force unprincipled settlements, perhaps by mediating between parties in order to settle a case out of court, may intimidate lawyers by direct or indirect means to prevent them from providing proper services to clients, may fail to follow procedures of making and writing judgments, in order to refuse application in an arbitrary manner, and may make judgments without reading of evidence and incorporating evidence into court records. They may also admit evidence gained through unconstitutional means and in violation of human rights, decide cases purely on technical issues without going into substantive matters, particularly where the public interest is concerned, misuse judicial discretion–including discretion to interpret laws or evidence–as a cover for conclusions arrived at by corrupt means to favour certain parties, and devote judicial time to other matters. Judges fail to sit at required times and pay little attention to the rights and conveniences of litigants and lawyers, hand over judicial functions to non judicial officers, like assistants or lawyers, show favour to individual lawyers or groups of lawyers, and make false travel claims and travel with persons with whom there is a professional relationship in the court, such as police officers. They incorrectly record witness statements, fail to record motions and applications by lawyers, meet with parties to hearings prior to opening court, obtain files only from one party and take the role of prosecutor during hearings. Judges may put leading questions to defendants to prevent them from presenting exhaustive evidence or challenging the evidence presented against them, not give equal opportunities to all parties to a case to present their positions in court, hear cases where there is a personal interest or other grounds for partiality, fail to observe rules relating to medical examinations of torture victims, thereby allowing police to continue with corrupt practices, and issue remand orders without seeing the detainee in court. They also tend to accept police versions of cases uncritically, despite common knowledge of police corruption and dishonesty. Some keep links with alleged criminals or otherwise inappropriate persons. Where international human rights law has been made part of local law through ratification of international instruments and customary law they may nonetheless ignore it and also the recommendations of international human rights bodies, to favour the executive authority. Some show ethnic, racial, gender or religious bias, take part in court auctions, and manipulate the auction process in favour of friends, relatives or others, and subscribe to a political view even if the court challenge is based on a constitutional right.
IV. Consequences of judicial corruption and executive control
As a result of judicial corruption and executive control litigants who have been dealt unjust judgments must go through lengthy successive appeals or give up their efforts to obtain justice through the courts, leading to brutal forms of retribution and vengeance–including gang killings–and parallel systems to obtain justice. The rule of law is further undermined. Society becomes demoralized. There is no public confidence in courts, judges, laws and lawyers. Judges and lawyers lose interest in their profession, which attracts increasingly unqualified and incompetent persons. Corruption and hopelessness spreads. Social development is undermined. The weakest sections of the society are worst affected. Human rights violators stand far beyond the reach of their victims. Collective memory of constitutionality and legality is eroded. New generations are brought up without any practical understanding of justice. Constitutional and human rights principles are meaningless. Instead, fear is endemic. The door is open for tyranny, as the reason for the existence of courts has itself been completely displaced and the separation of powers lost. The state itself is weakened and loses credibility at home and abroad.
V. Recommendations for the prevention of judicial corruption and breaking of executive control
1. Separation of powers
The separation of the judiciary from the executive is the basis upon which all rules relating to the judiciary should be developed. Therefore, the executive shall not decide which judges may sit to hear a particular case and the legislature shall not reverse a judicial decision with retrospective effect or invade the domain of the judiciary by pronouncing judgments, such as a bill of attainder. Judicial independence must be guaranteed and protected by law, as well as in practice, by the provision of an adequate budget for the judiciary, managed by the judicial arm itself. Judges must be given adequate security to ensure that they are able to fulfill these functions and maintain independence accordingly.
2. Appointments, remuneration and disciplinary control
To check and arrest growing corruption in the judicial system a social audit is necessary. For this purpose an ombudsman or equivalent should be appointed from among persons with the highest degree of integrity and honesty by the senior-most court of the country. There must also be a direct avenue for complaints of judicial malpractice to be lodged and investigated with sufficient opportunity for all parties to have their side heard. It must be easily accessible. National institutions on human rights can also play a useful role in creating discussion about judicial corruption and executive control.
An independent body must manage judicial appointments and transfers, consisting of suitably qualified and impartial persons. All of its members must have equal rights to participate and none must be prevented from fulfilling his or her duties, either due to internal or external obstacles. Judges should be made to declare their assets before appointment, and have them reviewed periodically. Existing judges must have their assets investigated and publicly reported upon. No judicial office shall be abolished while it has a substantive holder. The salaries and benefits of judges shall be rationalized so that persons of unquestionable integrity who are physically and mentally fit can be inducted, without discriminating against persons with disabilities. The records of judicial candidates should be tracked and the person’s integrity, capability and also human rights record and background be given full consideration. All trial judges should be elected from among lawyers of good standing of the same territorial jurisdiction, and with regards to ensuring that appointments are not politicized. Salaries and benefits shall not be reduced. Judges should be provided housing and other facilities, including education for their children, within their area of jurisdiction. The retirement age of judges should be brought up to international standards and adequate measures should be taken so that judges do not undertake any office for profit within ten years after the date of retirement. No sitting judge shall under any circumstances accept any office that requires the performance of non-judicial functions. Prior to the appointment of senior judges, especially the chief justice, public opinion should be solicited and taken into consideration.
Judges need to be aware of their obligation to society in consonance with the aspiration of individuals and requirements of the society. Their performances should be periodically assessed to determine that they are acting accordingly, and a report made public. The higher judiciary must not behave coercively towards the lower judiciary. Judges of the superior courts must respect their peers. Likewise, judges must behave towards lawyers, defendants and witnesses in a courteous and professional manner. All forms of bullying by judges, among themselves and towards lawyers and other persons in the court, should be treated as misconduct and the offenders punished. The judge is further responsible to ensure that any accused is brought to the court in a dignified manner that does not violate human rights, and take special steps where necessary to guarantee this. In this respect, proper values and a bias for integrity and human rights should be cultivated deeply and meaningfully in judges training and at law schools. The formation of cliques among judges with a view to getting unfair advantages should also be treated as misconduct and discouraged by appropriate punishment. Judges should be excluded from duties of protocol, such as waiting on politicians and dignitaries. Nor should they have political affiliations. Bench-fixing should be treated as a serious breach of discipline. Judges should be entitled to apply for review of any case where they believe they have been disciplined or transferred unfairly.
3. Procedural and material issues
Due process and elimination of judicial corruption requires attention to numerous procedural and material issues in order to remove constraints on the judicial system that prevent the judiciary from performing its role satisfactorily.
Laws must be reformed to address gaps in procedure that allow for corruption, and ensure adequate and transparent coordination between investigators, prosecutors and the judiciary. Standards of evidence to prove graft and corruption for administrative and criminal actions should be lowered. Problems of overburdened judges must be addressed. Perjury must be punished. Double jeopardy must be absolutely prohibited. Contempt of court must be clearly defined, allowing for a liberal interpretation as provided for in more developed jurisdictions. Media freedom for reporting and commenting on judicial processes should be fully respected. The freedom to expose judicial failings, such as by writing or satire, should be respected and protected. Under no circumstances should a judge before whom contempt of court is alleged to have been committed be allowed to adjudicate the issue, either in the first instance or at appeal. All decisions in courts of first instance must be open to appeal. A court must exist with jurisdiction to review cases that are said to be in violation of the constitution. State agents and agencies must comply with court orders and be punished for failing to do so. International law and universal jurisdiction on human rights violations must be allowed in the courts. All countries should ratify the International Convention on Civil and Political Rights and its optional protocols. All countries should respect their international obligations under such treaties and put into effect the views expressed by monitoring bodies such as the UN Human Rights Committee and recommendations of treaty bodies and special procedures of the UN Commission on Human Rights.
In cases of gross human rights violations by state agents, the burden of proof should be on the alleged perpetrators, with due regard to their fundamental human rights. The victims of human rights abuses should also have access to preliminary remedies. Statutes of limitations on human rights abuses should be abolished, especially in fundamental rights applications under the constitution. All gross violations, including torture and enforced disappearance, must be criminalized and appropriate remedies introduced. A department should be established for compensation of victims, particularly of human rights violations, and support programmes also created.
Arresting and interrogating officers in criminal cases must be different, in order to enable objectivity in investigations. For example, a police officer who has tortured a victim and obtained a confession may get a colleague who is known to him to perform the interrogation and so the torture victim may lose the opportunity to express what has actually taken place. Especially where there are allegations of torture and gross human rights violations by the police, independent teams that are not under the influence of the perpetrators should do the investigation. Interrogation centres should be outside of the control of the police or prosecutors. Practices such as the taking of signatures on blank papers and other forms of manipulation should be prevented by law, and documents that are liable to manipulation by the police should not be admitted as evidence. On the other hand, forensic science must be widely used in court, by establishing separate competent forensic science departments with necessary facilities, introducing laws to oblige their use, and reforming the medico-legal system.
Court records must be properly maintained. The management and safe custody of records is the responsibility of the judge. However, judges must not be made to do clerical duties other than those strictly required for the performance of judicial functions. Interference with the official documents and registers should be treated as a serious breach of discipline. The times of court sittings must be fixed and if judges violate this rule without due cause they should be punished. The reasons for failure to keep on time must be recorded. Judges should promptly record the complaints of detainees against the authorities. Every judicial proceeding should be electronically recorded and also videotaped: modern technology must be widely embraced and used by the courts. Interpreters and legal aid must be provided to those persons who need them. National legal aid programmes should be well-funded. In trials of foreigners the court should take into consideration the legal system of the foreign nation when reaching a judgment and considering how it may be executed. In every case where a judgment is given a reason must be stated. Government policy shall not be included as a consideration in reaching judgments. Where trial judges have different opinions they should record their reasons in writing. Judgments should be made available in writing within one or two weeks of being given. After trial the concerned parties should have access to all files.
The principles to ensure effective judges should be applied to prosecutors. Prosecutors cannot be changed for political reasons. They must have security of tenure. They should not be moved in and out of a trial before its completion in a way that may affect the trial outcome. Appointment should be through an independent body and prosecutors should have a supervisory role in investigations of crimes
Unnecessary trial delays must be ended. National plans are urgently needed to address the lengthy delays in some jurisdictions. Appeal processes especially must be sped up.
Towards popular action for justice reforms
Widespread advocacy and popular action is needed to bring about justice reforms in Asia. In spite of legal protections on paper, people throughout the region, especially the poor and vulnerable, find their basic human rights routinely violated by state authorities. While the perpetrators are most often police and other law-enforcement officials, the judiciary is the custodian of the rule of law, responsible for seeing these perpetrators brought to justice. Therefore the role of judicial officers in promoting and protecting human rights must be routinely discussed, and education on protection of human rights engendered.
There are many avenues available to further popular action on justice reforms. For instance, all human rights organizations should prioritize work to eliminate delays in adjudication. Paralegals can be trained to operate throughout a country, and be involved in training programmes of police, professionals and other interested persons. International fact-finding and lawyer exchanges can be developed, and new associations of lawyers for human rights furthered. Advocacy work can concentrate on the need to establish an international mechanism to monitor and rule upon judgments in the highest national courts that affect human rights and speak to judicial corruption. A people’s body can be created to recognize and award judges who are able to eliminate delays and who show great integrity and independence. An honour list of lawyers and judges who have sacrificed their lives for the cause of fair administration of justice and human rights can be drawn up.
Participants in the consultation
Mr M Enayetur Rahim (Bangladesh)
Mr Nazmul Haque Shah Chowdhury (Bangladesh)
Mr Abdus Samad (Bangladesh)
Dr Lao Mong Hay (Cambodia)
Ms Li Yujie (China)
Mr Ma Jiafu (China)
Ms Sun Weiping (China)
Mr Zhang Pinze (China)
Mr John Joseph Clancey (Hong Kong)
Mr Justice D K Basu (India)
Mr Jijo Paul (India)
Mr Taufik Basari (Indonesia)
Mr Rudi Rizki (Indonesia)
Mr Papang Hidayat (Indonesia)
Mr Rex Jesus Mario A Fernandez (Philippines)
Mr Ricardo Sunga III (Philippines)
Mr Sanjeewa Weeravikrama (Sri Lanka)
Dr Jayantha de Almeda Gunaratne (Sri Lanka)
Ms Kishali Pinto Jayawardena (Sri Lanka)
Mr Chung Mi-hwa (South Korea)
Mr Tewarit Chotichompupong (Thailand)
Ms Sor Rattanamanee Polkla (Thailand)
Mr Surachai Trongngam (Thailand)
