Impact of the Bangalore Principles
The endorsement of the Bangalore Principles by three principal agencies of the United Nations – the Commission on Human Rights, the Commission on Crime Prevention and Criminal Justice, and the Economic and Social Commission - have been referred to above.
In April 2004, in his report to the 60th session of the Commission on Human Rights, the new UN Special Rapporteur on the Independence of Judges and Lawyers, Leandro Despouy, noted that:
The Commission has frequently expressed concern over the frequency and the extent of the phenomenon of corruption within the judiciary throughout the world, which goes far beyond economic corruption in the form of embezzlement of funds allocated to the judiciary by Parliament or bribes (a practice that may in fact be encouraged by the low salaries of judges). It may also concern administration within the judiciary (lack of transparency, system of bribes) or take the form of biased participation in trials and judgments as a result of the politicisation of the judiciary, the party loyalties of judges or all types of judicial patronage. This is particularly serious in that judges and judicial officials are supposed to be a moral authority and a reliable and impartial institution to which all of society can turn when its rights are violated.
Looking beyond the acts themselves, the fact that the public in some countries tends to view the judiciary as a corrupt authority is particularly serious: a lack of trust in justice is lethal for democracy and development and encourages the perpetuation of corruption. Here, the rules of judicial ethics take on major importance. As the case law of the European Court of Human Rights stresses, judges must not only meet objective criteria of impartiality but must also be seen to be impartial; what is at stake is the trust that the courts must inspire in those who are brought before them in a democratic society. Thus one can see why it is so important to disseminate and implement the Bangalore Principles of Judicial Conduct, whose authors have taken care to base themselves on the two main legal traditions (customary law and civil law) and which the commission noted at its fifty-ninth session.
He recommended that the Bangalore Principles be made available, preferably in national languages, in all law faculties and professional associations of judges and lawyers.
In his 2006 report presented to the Human Rights Council and the United Nations General Assembly, the UN Special Rapporteur on the Independence of Judges and Lawyers, stated thus:
Corruption of the judiciary is one of the most pernicious threats to the rule of law and one of the most difficult to eradicate. There are many contributing factors. High levels of corruption and judicial apathy are often attributed to the poor remuneration of judges and lawyers and the judiciary’s lack of financial independence; however, the Special Rapporteur would stress the significance of other factors such as judges’ ideological or political allegiances. The Special Rapporteur’s experience shows that such factors have a decisive impact on judges’ ability to act in an effective, independent and impartial manner, in accordance with their professional ethics, particularly when several contributing factors coincide with a weak institutional framework and a culture of corruption. These situations often arise in countries where the principles of judicial independence and international fair trial standards are not well established. The Special Rapporteur has therefore strongly urged States to adopt and subscribe to the Bangalore Principles of Judicial Conduct.
In his 2008 and 2009 reports to the Human Rights Council, the UN Special Rapporteur on the Independence of Judges and Lawyers cited extensively from the Bangalore Principles. In her 2010 report, the new Special Rapporteur, Gabriela Carina Knaul de Albuquerque e Silva, referred to corruption and added thus:
Corruption can be political, economic or corporate, but in all its forms, it undermines democratic values and institutions and the enjoyment of human rights. Judicial integrity is a key element of impartial justice. Judges, prosecutors and lawyers should be trained in the need to combat corruption and in the international norms and declarations. In this aspect, particular attention should be given to the Bangalore Principles of Judicial Conduct.
During her presentation to the 64th session of the General Assembly, she stressed the need to encourage and stimulate periodic regional meetings with all actors in the judicial system. She added:
The examples of the Bangalore Principles of Judicial Conduct and the Harare Declaration by senior judges prove the importance of such meetings.
The Special Rapporteur stated that these meetings could involve training on international human rights principles and norms and, in addition, provide an opportunity for the exchange of information and ideas as to how their implementation can best be achieved in national judicial systems.
The UNODC, in a background paper prepared for the 11th United Nations Congress on Crime Prevention and Criminal Justice, highlighted the issue of judicial integrity as a key prerequisite for the rule of law, economic growth and the eradication of poverty and, in that context, brought to the attention of delegates the work of the Group and the Bangalore Principles of Judicial Conduct.
Meanwhile, UNODC has since 2003 provided support to several countries in strengthening judicial integrity, using the Bangalore Principles as guidance. As part of these efforts, the Bangalore Principles have been translated into several national languages including Indonesian Bahasa and Farsi.
The relevance of the Bangalore Principles of Judicial Conduct in strengthening judicial integrity is now underscored in the United Nations Convention Against Corruption. Article 11(1) of that Convention provides that:
Bearing in mind the independence of the judiciary and its crucial role in combating corruption, each State party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary. Such measures may include rules with respect to the conduct of members of the judiciary.
ECOSOC Resolution 2007/22 requested the Secretariat “to submit the Bangalore Principles of Judicial Conduct and the Commentary on the Bangalore Principles to the Conference of the States Parties to the United Nations Convention against Corruption at its second session”.
Use by other international bodies and organizations
In July 2003, judges from international courts and tribunals who met at a workshop in Austria to develop ethics guidelines for international courts, under the auspices of the International Center for Ethics, Justice and Public Life at the second annual Brandeis Institute for International Judges, used the Bangalore Principles as a basic document for their discussions. It is described in the report as “a set of principles developed over several years by the Judicial Integrity Group, a multi-national committee of high court judges, with additional input from judges of the International Court of Justice”
In October 2004, Senior Officials of Commonwealth Law Ministries meeting in Marlborough House, London, agreed to recommend that Law Ministers should mandate the Commonwealth Secretariat to establish “a judicial code of conduct in member countries which could be based on the values set out in the Bangalore Principles of Judicial Conduct to be placed before Law Ministers with a view to their being commended to judiciaries in the process of establishing such a code; and developing training for and a code of conduct for court administrative staff”.
The European Commission and the Council of Europe introduced the Bangalore Principles of Judicial Conduct (through a paper presented by the Coordinator of the Group) to the State Duma of the Federal Assembly of the Russian Federation at an expert meeting on “The international experience and standards in the sphere of prevention and combating corruption within the judiciary”, held in Moscow in October 2005. Similarly, the Organization for Security and Co-operation in Europe, recommended the Bangalore Principles for adoption by the judiciary of Armenia at a workshop held in Yerevan in November 2005. The Office of the United Nations High Commissioner for Human Rights has also made several references to the Bangalore Principles in the course of its activities.
The UN Committee on the Elimination of Racial Discrimination, in requiring States parties to "strive firmly to ensure a lack of any racial or xenophobic prejudice on the part of judges, jury members and other judicial personnel", and to "prevent all direct influence by pressure groups, ideologies, religions and churches on the functioning of the system of justice and on the decisions of judges, which may have a discriminatory effect on certain groups", requested States parties to "take into account the Bangalore Principles of Judicial Conduct, and cited several relevant provisions from it.
In March 2010, the General Assembly of the International Association of Youth and Family Judges and Magistrates unanimously adopted Principles of Judicial Ethics for Youth and Family Judges and Magistrates that was based substantially on the Bangalore Principles of Judicial Conduct. Its Preamble reads as follows:
WHEREAS the Bangalore Principles of Judicial Conduct have a universal aim and were conceived, adopted and supported in a manner which conferred upon them a unique international legitimacy.
WHEREAS these Bangalore Principles are aimed at judges and magistrates as a whole, including those who work in the area of child or youth and family matters.
WHEREAS judicial practice in youth and family matters entails its own characteristic dimensions and emphases, as appears, amongst others, from the Convention on the Rights of the Child.
WHEREAS there is reason to reaffirm the values expressed the Bangalore Principles by placing them in the particular context of the exercise of the judicial functions in child or youth and family matters.
An explanatory note to the Preamble states as follows:
The Preamble refers to the Bangalore Principles of Judicial Conduct. These principles were adopted in their current form in 2002, following extensive consultations. They have received international endorsement or recognition from such bodies as the UN Social and Economic Council, the UN Office on Drugs and Crime, the International Commission of Jurists and the American Bar Association. They have a legitimacy that is unique. They are aimed at judges and magistrates of all jurisdictions, including those who deal with youth and family matters. They cover much of the ground that had to be covered. Referring to them in the Preamble involves an acknowledgement of their relevance for youth and family judges and magistrates.
Yet, youth and family judges and magistrates work in a fairly specialized environment, which has its specificities. Consequently, specific principles of ethics may be desirable. Adding such complementary elements may serve several purposes. Values that underpin the Bangalore Principles may be reaffirmed in a way that places more emphasis on dimensions that are particularly relevant to youth and family matters. It may bring about a stronger allegiance to the principles among youth and family judges and magistrates. It may also foster a better understanding of the role and work of those who sit in youth and family jurisdictions, thus helping to promote the understanding of judicial ethics for such specialized jurisdictions with third parties (such as States, persons who are in contact with youth and family courts and the public in general). If such complementary principles are adopted, it may be important to ensure that they include a reference to all of the essential values of the Bangalore Principles, even if this may involve occasional repetitions: many judges and magistrates may not be familiar with the Bangalore Principles and are likely to find it helpful to have a document that essentially stands on its own, despite its reference to the Bangalore Principles.
Consequently, complementary principles should aim primarily at reaffirming values or principles that may be already present in the Bangalore Principles but that may have the advantage of being rephrased so as to be closer to the specific role of youth and family jurisdictions. As a secondary consideration, one may also find it appropriate to refer to some of the values underpinning the Bangalore Principles, even in terms that are not specific to youth and family matters, if the presence of such references is deemed important to provide a minimal degree of autonomy to the proposed body of principles.
Courts and other Judicial Tribunals
Reference to the Bangalore Principles has been made in judgments of several superior courts and other tribunals. For example, in 2009, in advising the removal from office of the Chief Justice of Gibraltar for inability to discharge the functions of his office, the Judicial Committee of the Privy Council observed that the Bangalore Principles (and the Guide to Judicial Conduct published by the Judges' Council of England and Wales in 2004) "provided guidance as to the standard of conduct to be expected of a judge". The provisions relating to "Impartiality" and "Propriety" were cited as being of particular relevance.
The Human Rights Committee established under the International Covenant on Civil and Political Rights held that a trial of a civilian by a Military Court constituted a violation of Article 14 of the Covenant. In a concurring opinion reaffirming that military tribunals should not in principle have jurisdiction to try civilians, Ms Christine Chanet and five other Members explained that:
Military functions fall within the framework of a hierarchical organization and are subject to rules of discipline that are difficult to reconcile with the independence of judges called for under article 14 of the Covenant and reaffirmed in the Bangalore Principles on the independence of the judiciary.
Use at the national level
On 31 March 2003, the Judiciary of Belize adopted a Code of Judicial Conduct and Etiquette that was a mirror image of the original Bangalore Draft Code of Judicial Conduct. On 27 April 2004, the Supreme Court of the Philippines promulgated (and published in newspapers of general circulation) the New Code of Judicial Conduct for the Philippine Judiciary, which, as its preamble stated, was based on the Bangalore Principles of Judicial Conduct. It superseded the earlier Canons of Judicial Ethics and the Code of Judicial Conduct.
According to available information, the Bangalore Principles have since been used, or are being used, as the basis or as a guide for developing their own national codes of judicial conduct or to revise existing codes, by the judiciaries of several countries on all the continents. Among the more recent documents is the Statement of Principles of Judicial Ethics for the Scottish Judiciary 2010 . Its Introduction states, inter alia:
While the Scottish Judiciary have an honourable tradition of the attainment of high standards of judicial conduct, that has been achieved without the benefit of written guidance. However, in recent years, written guidance has been developed in many other jurisdictions. Furthermore, a recognition of the need for such guidance in relation to judicial conduct has emerged in the international context with the development of the Bangalore Principles of Judicial Conduct, endorsed at the 59th session of the United Nations Human Rights Commission at Geneva in April 2003. Against this background, it is considered that it is now appropriate for such guidance to be available in Scotland. To that end this document has been devised, after consideration, by the Judicial Council for Scotland. It is intended that, from time to time, it should be reviewed in the light of experience and changing circumstances.
In the development of this document, importance has been attached to the components of the Bangalore Principles themselves and therefore acknowledgement is due to those responsible for their formulation.
Use by non-governmental organizations
In February 2004, in a letter addressed to then US Chief Justice Rehnquist, the Secretary-General of the International Commission of Jurists questioned the impartiality of a Judge of the Supreme Court in an appeal before the Supreme Court filed by the Vice-President. The secretary-general drew attention to the Bangalore Principles and quoted extensively its elaboration of the concept of impartiality (the letter may be accessed at www.icj.org)
The American Bar Association uses the Bangalore Principles of Judicial Conduct as the authoritative text in its programmes that seek to improve awareness and understanding of judicial ethics in Central Europe, Eurasia and Africa. The Bangalore Principles are also being used in assisting judges associations to conclude statements of judicial ethics. Such programmes have been, or are being, conducted in several countries including Bulgaria, Indonesia, Mongolia, Thailand and Malaysia.
ABA-Asia has also prepared a paper on the relationship of the Bangalore Principles to the implementation responsibilities of signatories to the United Nations Convention Against Corruption (UNCAC) and the efficacy of those principles in promoting an independent judiciary. The ABA 2005 report on international rule of law initiatives contains the following paragraph:
One important lesson of the ABA’s work on judicial ethics has been the recognition of a need for greater reliance on international standards in assisting the developing nations with creating judicial conduct codes, as opposed to principles of conduct borrowed from the national legal systems of other countries. In this respect, the Bangalore Principles of Judicial Conduct, which were drafted by the Judicial Group on Strengthening Judicial Integrity and endorsed by the UN Commission on Human Rights, have proved a valuable resource. The Principles played a prominent role in the development of the Jordanian Code of Judicial Conduct and the Serbian Standards of Judicial Ethics, but it was the Philippines that became one of the first countries to adopt a judicial ethics code that is virtually identical to the Bangalore Principles. The Philippines adopted this new ethics code as part of a larger reform effort in recognition of the value of applying internationally recognized ethical standards, and in appreciation of the fact that the Bangalore Principles was one of the few judicial ethical models written by judges for judges. Following the adoption of the Philippine Code, a number of challenges in its implementation became obvious, and ABA-Asia undertook the task of promoting the judiciary’s participation in addressing these challenges.