Introduction
An innovative experiment
The Judicial Group on Strengthening Judicial Integrity, or Judicial Integrity Group as this body has come to be known, is an independent, autonomous, not-for-profit and voluntary entity, owned and driven by its members, all of whom are (or have been) heads of the judiciary or senior judges in their respective countries or at the regional or international level, enjoying independence from the executive, and who share common values and beliefs on the integrity of the judiciary and a determination to deepen and broaden the quality of the administration of justice in appropriate ways.
Background to its formation
The Judicial Integrity Group was formed in early 2000 following discussions, initiated by Nihal Jayawickrama and Jeremy Pope in the context of their then-involvement with the Centre for Research and Innovation of Transparency International, with eight Chief Justices from four African and four Asian countries.1 Recognizing the existence of different legal traditions in the world, it was decided to limit the preparatory exercise to the common law system which, while applying a multitude of different laws, shared a common judicial tradition. A growing body of evidence had surfaced that, in many countries in Africa, Asia, Eastern and Central Europe and Latin America, the public were losing confidence in their judicial systems, mainly due to their perception that the judiciary was a corrupt institution. This evidence had emerged through service delivery and public perception surveys, as well as through commissions of inquiry established by governments.
The decision to take this initiative followed a pilot workshop on Strengthening Judicial Integrity held in October 1999 during the 9th International Anti-Corruption Conference in Durban. It was attended by over 160 participants, including judges, lawyers, legal academics, justice ministry officials, members of parliament, human rights activists, and civil society representatives. One message that came through clearly from that workshop was the need to formulate and implement a concept of judicial accountability without eroding judicial independence.2
1 The Chief Justices of Nigeria, Uganda, Tanzania, South Africa, Sri Lanka, Bangladesh, Nepal and Karnataka State in India. Judge Christopher Weeramantry, Vice-President of the International Court of Justice, agreed to chair the Group, while Justice Michael Kirby of the High Court of Australia agreed to serve as its rapporteur. Dato Param Cumaraswamy, UN Special Rapporteur on the Independence of Judges and Lawyers, agreed to participate as an observer.
2 Following the Durban Conference, the Centre for the Independence of Judges and Lawyers (CIJL) convened a 16-member expert group to address the issue of judicial corruption. At the conclusion of a two-day meeting held in Geneva, the expert group agreed on The Policy Framework for Preventing and Eliminating Corruption and Ensuring the Impartiality of the Judicial System and urged governments, international financial institutions, members of the judiciary, lawyers and other policy-makers to take active steps to prevent and eliminate corruption in the judiciary. One of the principal elements of this policy framework was to endeavor to achieve an enforceable statement of judicial ethics.
Meetings of the Group
The Preparatory Meeting, Vienna, 2000
On 15th and 16th April 2000, on the invitation of the United Nations Centre for International Crime Prevention (UNCICP), and within the framework of its Global Programme Against Corruption, a preparatory meeting of Chief Justices and Senior Justices was convened in Vienna, in conjunction with the 10th United Nations Congress on the Prevention of Crime and the Treatment of Offenders.1 The participants at this preparatory meeting were:
›› Judge C.G. Weeramantry (Chairperson)
›› Justice Michael Kirby (Rapporteur)
›› Chief Justice Latifur Rahman (Bangladesh)
›› Chief Justice Y. Bhaskar Rao (Karnataka State in India)
›› Justice Govind Bahadur Shrestha (Nepal) representing his Chief Justice
›› Chief Justice M.L. Uwais (Nigeria)
›› Deputy President Pius Langa (Constitutional Court of South Africa)
›› Former Chief Justice F.L. Nyalali (Tanzania)
›› Justice B.J. Odoki (Uganda)
Observers
›› Professor Pino Arlacchi
Under Secretary-General and Executive Director UN Office on Drug Control and Crime Prevention
›› Dato’ Param Cumaraswamy
UN Special Rapporteur on the Independence of Judges and Lawyers
›› Justice Dr Ernst Markel
Vice-President of the International Association of Judges
Coordinator
›› Justice Dr Ernst Markel
Vice-President of the International Association of Judges
›› Dr Nihal Jayawickrama
Executive Director, Transparency International
Facilitators
›› Justice Dr Ernst Markel
Vice-President of the International Association of Judges
›› Jeremy Pope
Executive Director, Transparency International
›› Justice Dr Ernst Markel
Vice-President of the International Association of Judges
›› Dr Petter Langseth
UNCICP
The participating judges agreed, first, that the principle of accountability demanded that the national judiciary should assume an active role in strengthening judicial integrity by effecting such systemic reforms as are within the judiciary’s competence and capacity. Second, they recognized the urgent need for a universally acceptable statement of judicial standards which, consistent with the principle of judicial independence, would be capable of being respected and ultimately enforced at the national level by the judiciary, without the intervention of either the executive or legislative branches of government. They emphasized that by adopting and enforcing appropriate standards of judicial conduct, the judiciary had the power to take a significant step towards earning and retaining the respect of the community. Accordingly, they requested that codes of judicial conduct which had been adopted in some jurisdictions be analysed, and a report be prepared by the Coordinator concerning (a) the core considerations that recur in such codes, and (b) the optional or additional considerations that occur in some, but not all, such codes and which may or may not be suitable for adoption in particular countries.
The Judges also agreed that research should be undertaken to create a survey instrument for the collection of data relating to judicial corruption in order that specific problem areas may be identified, and the effectiveness of subsequent reforms tracked. While not denying the validity of public perception surveys, they felt that the experience of actual court-users and other stakeholders would be more useful in identifying systemic weaknesses in the judicial process and enabling these to be remedied.
1 Transparency International’s Berlin office was unable to finance the meeting. However, through the good offices of Petter Langseth, arrangements were made for it to be funded by UNCICP (now UNODC) under its Global Programme Against Corruption. Thus, began a fruitful collaboration with the UN’s Vienna Office.
The Second Meeting, Bangalore, 2001
The second meeting of the Judicial Integrity Group was held in Bangalore, India, from 24th to 26th February 2001 on the invitation of the Chief Justice of Karnataka State. It was facilitated by the Department for International Development (DfID), United Kingdom; hosted by the High Court and the Government of Karnataka State; and supported by the Office of the United Nations High Commissioner for Human Rights. Following an inaugural session at the Karnataka Judicial Academy, the meeting was held at the Windsor Manor Sheraton Hotel. The participants at this meeting were:
›› Judge C.G. Weeramantry (Chairperson)
›› Justice Michael Kirby (Rapporteur)
›› Chief Justice M.L. Uwais (Nigeria)
›› Chief Justice B.A. Samatta (Tanzania)
›› Chief Justice B.J. Odoki (Uganda)
›› Deputy President Pius Langa (Constitutional Court of South Africa)
›› Chief Justice S.N. Silva (Sri Lanka)
›› Chief Justice P.V. Reddi (Karnataka State, India)
›› Chief Justice M.R. Chowdhury (Bangladesh)
›› Chief Justice K.P. Upadhyaya (Nepal)
Special Guests
›› P.N. Bhagwati
former Chief Justice of India, and Vice-Chairman of the UN Human Rights Committee, representing Mary Robinson, UN High Commissioner for Human Rights
›› Justice Claire L’Heureux Dube
Supreme Court of Canada, President of the International Commission of Jurists
›› Justice S.P. Bharucha
Supreme Court of India, representing the Chief Justice of India
›› Y. Bhaskar Rao
former Chief Justice of the High Court of Karnataka State, India
Observers
›› Dato Param Cumaraswamy
UN Special Rapporteur on the Independence of Judges and Lawyers
›› Justice Vishwanatha Shetty
High Court of Karnataka State
›› Justice G.C. Bharuka
High Court of Karnataka State
›› A.M. Jayaram
Advocate-General of Karnataka State
Resource Persons
›› Jeremy Pope
Executive Director, Transparency International
›› David Wood
Deputy Chief Governance Adviser, DfID, United Kingdom
Coordinator
›› Dr Nihal Jayawickrama
At this meeting, the Coordinator presented a draft code of judicial conduct prepared by him. He described the way in which it had been developed after a study of 21 national codes, principles, and guidelines, and eight regional and international instruments that addressed issues of relevance. The Group, proceeding by way of examination of the draft, confirmed the core values and the relevant principles, and agreed on the Bangalore Draft Code of Judicial Conduct (the Bangalore Draft). However, since the Bangalore Draft had been developed by judges drawn principally from common law countries, the Group emphasized the need for it to be scrutinized by judges of other legal traditions to enable it to assume the status of a duly authenticated international code of judicial conduct. The Coordinator was also requested to prepare an explanatory note to accompany the Draft, setting out the origins of the project and describing the way in which it had been developed.
The Coordinator also presented (a) draft survey instruments designed to ascertain the extent of corruption within the judicial system, and (b) draft case audits designed to ascertain the procedural “road-blocks” responsible for delays in judicial proceedings. The Chief Justices of Sri Lanka, Nigeria and Uganda offered to facilitate the administration of pilot studies for the implementation of these surveys in their jurisdictions.
The Third Meeting, Colombo, 2003
The Third Meeting of the Judicial Integrity Group was held in Colombo. It was facilitated by a grant from the Department for International Development (DfID), United Kingdom, and supported by the United Nations Centre for International Crime Prevention, Vienna, and the Office of the United Nations High Commissioner for Human Rights. It was organized with the assistance of the Government of Sri Lanka and the Marga Institute, Colombo. Following the inaugural session at the Hotel Lanka Oberoi, at which the Prime Minister of Sri Lanka was the chief guest, the working sessions were held at the Colombo Hilton. The participants at this meeting were:
›› Judge C.G. Weeramantry (Chairperson)
›› Justice Michael Kirby (Rapporteur)
›› Chief Justice M.L. Uwais (Nigeria)
›› Chief Justice B.A. Samatta (Tanzania)
›› Chief Justice B.J. Odoki (Uganda)
›› Deputy Chief Justice Pius Langa (South Africa)
›› Chief Justice N.K. Jain (High Court of Karnataka State, India)
›› Justice K.M. Hassan (Bangladesh)
›› Chief Justice K.N. Upadhyaya (Nepal)
›› Former Chief Justice P.N. Bhagwati (India), Chairman of the UN Human Rights Committee
Special Guests
›› Chief Justice Hilario G. Davide Jr (Philippines)
›› Deputy Chief Justice Dr Adel Omar Sherif (Egypt)
Observer
›› Dato Param Cumaraswamy
UN Special Rapporteur on the Independence of Judges and Lawyers
Resource Persons
›› Jeremy Pope
Executive Director, Transparency International
›› Dr Petter Langseth
Programme Manager, Global Programme Against Corruption, UNCICP
›› Keith Mackiggan
Justice and Human Rights Adviser, DfID, United Kingdom
Coordinator
›› Dr Nihal Jayawickrama
The Group had before it reports of national surveys of court users and other stakeholders in the justice systems in Nigeria, Uganda and Sri Lanka, based on instruments approved at the Bangalore meeting. It was agreed that, with funds provided by DfID and UNCICP, the survey instruments employed and the data gathered in the three countries should be assessed and evaluated by a body that specializes in survey analysis, in order to maximize their utility. The Group also examined systemic weaknesses identified in the surveys, identified the areas for attention, and recommended remedial measures.
The Bangalore Principles of Judicial Conduct which had emerged from the Round-Table Meeting of Chief Justices held in the Peace Palace at The Hague was tabled. The UN Special Rapporteur informed the Group that the Principles (translated into the UN languages) were annexed to his report to the forthcoming session of the UN Commission on Human Rights.
The Coordinator tabled a Draft Code of Conduct for Judicial Employees which he had prepared. The Group decided to reformulate it as guidelines and not as a code, and to distribute the amended version to court registrars for comment by them.
Finally, on the invitation of the Group, Chief Justice Davide and Deputy Chief Justice Adel Omar Sherif agreed to serve as members of the Group. The Group noted the absence of Chief Justice Silva (Sri Lanka) who would be taken to have retired from the Group.
The Fourth Meeting, Vienna, 2005
On the invitation of Antonio Maria Costa, Executive Director of the United Nations Office on Drugs and Crime (UNODC), the fourth meeting of the Group was held at the Vienna International Centre, Vienna, Austria, on 27th and 28th October 2005. The meeting was organized under the framework of the Global Progamme Against Corruption. The participants were:
›› Judge C.G. Weeramantry (Chairperson)
›› Justice Michael Kirby (Rapporteur)
›› Chief Justice M.L. Uwais (Nigeria)
›› Chief Justice B.J. Odoki (Uganda)
›› Chief Justice Pius Langa (South Africa)
›› Former Chief Justice P.N. Bhagwati (India)
›› Deputy Chief Justice Adel Omar Sherif (Egypt)
›› Justice John A. Mroso (Tanzania), representing Chief Justice Samatta.
Special Guests
›› Dr Johann Rzeszut
President of the Supreme Judicial Court of Austria.
›› Chief Justice J.E. Gicheru (Kenya)
›› Dr Robert Fremr
Chairman of the Senate of the Criminal Division of the Supreme Court of the Czech Republic, representing the Chief Justice of the Czech Republic
Observers
›› Dato Param Cumaraswamy
UN Special Rapporteur on the Independence of Judges and Lawyers
›› Mr Stuart Gilman
Head, Anti-Corruption Unit, UNODC
›› Dr Oliver Stolpe
Crime Prevention Expert, Anti-Corruption Unit, UNODC
›› Ms Sonia Cronin
Assistant to the UN Special Rapporteur on the Independence of Judges and Lawyers, representing the Special Rapporteur Dr Leandro Despouy
›› Dr Dedo Geinitz
Deutsche Gesellschaft fur Technische Zusammenarbeit (GTZ) GmbH
›› Mr Robert Husbands
Office of the UN High Commissioner for Human Rights
›› Dr Giuseppe Di Federico
Director, Research Institute on Judicial Systems, University of Bologna
Coordinator
›› Dr Nihal Jayawickrama
The Coordinator tabled the draft Principles of Conduct for Court Personnel. Having considered several amendments that were proposed, including those suggested by Chief Justice Davide of the Philippines and by the Principal Registrar of the High Court of Australia, the Group formally adopted the principles and commended them to the participating judges for introduction and trial in their jurisdictions.
Chief Justice Gicheru outlined the initiatives that had been taken to combat the problem of corruption which had assumed pandemic proportions in the Kenyan judiciary. The maxim “why pay a lawyer when you can buy the judge?” had achieved notoriety, and the majority of Kenyan judges had become “the best judges that money can buy”. While thanking the Chief Justice for his candid report, the Group stressed that the need for transparency and fairness had to be balanced with the need to defend the judicial institution and protect judges under accusation until a stage was reached in the investigation warranting suspension from duty and response to a charge. The members considered the procedures that would be appropriate for investigating complaints of corruption against judges and also complaints that judges had breached principles of judicial conduct. It was agreed that the Coordinator would prepare a note on existing mechanisms.
Professor Di Federico tabled his report Recruitment, Professional Evaluation and Career of Judges and Prosecutors in Europe in leading the discussion on the evaluation of judicial performance, and on judicial discipline in Continental Europe, which were included in the agenda at the request of Chief Justice Odoki. It was agreed that the Coordinator will analyse the Bangalore Principles and other sources to consider whether any checklist to measure judicial performance can be recommended so as to reflect objective considerations whilst at the same time respecting the immeasurable values which the judiciary defends.
It was agreed that a Commentary on the Bangalore Principles would be prepared by the Coordinator with the assistance of UNODC. The Group approved the creation of an Internet Webpage on the activities of the Group. The Group also approved a draft resolution on strengthening judicial integrity, tabled by UNODC, which, it was hoped would be presented to the UN General Assembly via the Commission on Crime Prevention and Criminal Justice at its 16th Session in 2006. The Members of the Group agreed that UNODC should be accepted as the sole agency for raising funds from donors for its ongoing work.
The Fifth Meeting, Vienna, 2007
The Fifth Meeting of the Judicial Integrity Group was hosted by the United Nations Office on Drugs and Crime (UNODC) and held at the Vienna International Centre from February 28th to March 2nd 2007. On the second and third of these days, the meeting was held in conjunction with the Open-ended Intergovernmental Expert Group Meeting convened by UNODC in pursuance of ECOSOC Resolution 2006/23. The participants were:
›› Judge C.G. Weeramantry (Chairperson)
›› Former Chief Justice M.L. Uwais (Nigeria)
›› Chief Justice B.J. Odoki (Uganda)
›› Chief Justice Pius Langa (South Africa)
›› Chief Justice B.A. Samatta (Tanzania)
›› Deputy Chief Justice Adel Omar Sherif (Egypt)
Special Guests
›› Lord Mance
House of Lords, and Chairman of the Consultative Council of European Judges
›› Conseillere Christine Chanet
Cour de Cassation, France, and Chairperson of the UN Human Rights Committee
Observers
›› Ms Kit Volz
Chief, Human Security Branch, UNODC
›› Mr Stuart Gilman
Head, Anti-Corruption Unit, UNODC
›› Dr Oliver Stolpe
Crime Prevention Expert, Anti-Corruption Unit, UNODC
›› Dr Dedo Geinitz
Deutsche Gesellschaft fur Technische Zusammenarbeit (GTZ) GmbH
Coordinator and Rapporteur
›› Dr Nihal Jayawickrama
The Group discussed its approach to the chapter on “Cultural and Religious Traditions” in the draft Commentary on the Bangalore Principles prepared by the Coordinator. One view expressed was that it was potentially divisive and would be inappropriate to be included in a commentary on judicial ethics. Another view expressed was that these cultural and religious traditions were the source of all ethical values and an understanding of them would enhance respect for the values enunciated in the Bangalore Principles. After an extensive discussion, the Group agreed to retain the chapter as an Appendix to the Commentary.
The Group agreed that it had an obligation to provide guidelines for the effective implementation of the Bangalore Principles. Without such procedures, the principles would remain mere aspirations and public expectations would remain unfulfilled. Having examined the framework for a statement of procedures suggested in a memo tabled by the Coordinator, the Group requested the Coordinator to prepare a comprehensive draft statement for discussion with a view to the statement being considered and adopted at the next meeting.
The Group reaffirmed that:
(a) It is an independent and autonomous body.
(b) It determines its own work programme.
(c) It determines its own membership.
(d) It determines the dates of its meetings.
(e) It may raise funds from any sources approved by it.
(f) It may negotiate and enter into partnerships with other institutions and organizations, including the UNODC.
The Sixth Meeting, Lusaka, 2010
The Judicial Integrity Group held its sixth meeting in Lusaka on January 21th and 22nd 2010. The meeting was hosted by the Chief Justice of the Republic of Zambia, the Hon. Ernest Sakala, and held at Hotel Taj Pamodzi, with the final session being convened in the Chambers of the Chief Justice in the Supreme Court Building. The meeting was facilitated by Deutsche Gesellschaft fur Technische Zusammenarbeit (GTZ) on behalf of the German Federal Ministry for Economic Co-operation and Development (BMZ), and in collaboration with the United Nations Office on Drugs and Crime (UNODC). The participants were:
›› Judge C.G. Weeramantry (Chairperson)
›› Justice Michael Kirby (Rapporteur)
›› Former Chief Justice M.L. Uwais (Nigeria)
›› Chief Justice B.J. Odoki (Uganda)
›› Chief Justice Pius Langa (South Africa)
›› Chief Justice B.A. Samatta (Tanzania)
›› Deputy Chief Justice Adel Omar Sherif (Egypt)
›› Lord Mance (United Kingdom)
›› Justice Christine Chanet (France)
›› Justice Rudolf Melinghoff (Germany)
Special Guest
›› Chief Justice Ernest Sakala (Zambia)
Observers
›› Deputy Chief Justice I.M.C. Mambilima (Zambia)
›› Justice M. Mwanamwambwa (Zambia)
›› Judge Philip Musonda (High Court, Zambia)
›› Dr Dedo Geinitz (GTZ)
›› Ms Gabriele Zoeller (BMZ)
›› Ms. Johanna Beate Wysluch (GTZ)
›› Mr Dimitri Vlassis (UNODC)
›› Dr Oliver Stolpe (UNODC)
›› Ms Julia Keutgen (UNDP)
Coordinator
›› Dr Nihal Jayawickrama
In six sessions of the meeting, the Group proceeded to examine in detail the draft Procedures for the Effective Implementation of the Bangalore Principles prepared by the Coordinator. It was agreed that these be described as “measures” rather than as “procedures”. While maintaining the structure (i.e. responsibilities of the judiciary and responsibilities of the state), the draft measures were reviewed and revised. The Group adopted the Measures for the Effective Implementation of the Bangalore Principles.
The Seventh Meeting, Garmisch-Partenkirchen, 2012
On the invitation of the Prof. Dr Rudolf Mellinghoff, President of the Supreme Court of Finance of Germany, the Judicial Integrity Group held its seventh meeting at Riessersee Hotel Resort in Garmisch-Partenkirchen, near Munich, in Germany, on October 10th and 11th 2012. The meeting was facilitated by Deutsche Gesellschaft fuer Internationale Zusammenarbeit (GIZ) on behalf of the German Federal Ministry for Economic Co-operation and Development (BMZ), and in collaboration with the United Nations Office on Drugs and Crime, Vienna (UNODC). The participants were:
›› Former Chief Justice M.L. Uwais (Nigeria)
›› Chief Justice Pius Langa (South Africa)
›› Former Chief Justice B.A. Samatta (Tanzania)
›› Deputy Chief Justice Adel Omar Sherif (Egypt)
›› The Lord Mance (United Kingdom)
›› Justice Christine Chanet (France)
›› Justice Dr. Rudolf Melinghoff (Germany)1
Observers
›› Mr Thomas Dittmann
Director-General of the German Federal Ministry of Justice (BMJ)
›› Ms Ursula Muller
Director-General of the German Federal Ministry for Economic Cooperation and Development (BMZ)
›› Ms Gabriele Zoeller (BMZ)
›› Ms Stephanie Teggemann (GIZ)
›› Mr Nicholas Stoetzel (GIZ)
›› Mr Philipp Jahn (GIZ)
›› Ms Jana Schuhmann (GIZ)
›› Dr Oliver Stolpe (UNODC)
›› Jason Reichelt (UNODC)
Coordinator and Rapporteur
›› Dr Nihal Jayawickrama
At the commencement of the meeting, the participants observed two minutes silence in memory of Jeremy Pope whose untimely death had occurred on 28 August 2012. Mr Pope, a former Director of the Legal and Constitutional Affairs Division of the Commonwealth Secretariat and Managing Director of Transparency International, was instrumental in the formation of the Judicial Integrity Group and had participated in several meetings of the Group as an observer and resource person.
After presentations by GIZ and UNODC respectively on their recent and planned activities relating to the Bangalore Principles and the strengthening of judicial integrity, the Group discussed its future work programme and priorities. The Group agreed, inter alia:
(a)to secure, through the German Government or any other Member State, the endorsement by the United Nations of the Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct adopted in Lusaka in 2010.
(b)That collaboration with organizations such as the International Commission of Jurists, the European Court of Human Rights and the Inter-American Court of Human Rights would be mutually beneficial.
(c)That the best practice section on the website should be expanded and that more judicial decisions should be included.
(d)That a folder containing the essence of the Bangalore Principles be prepared and published for distribution to court users, the media and the public, and also placed on the website.
(e)That a mechanism that would monitor compliance by national judiciaries with the provisions of the Bangalore Principles should be developed, and noted with appreciation the offer by BMZ to support a meeting of the Group and a few Chief Justices from selected regions to continue the process of developing the monitoring mechanism.
(f)That a data base of ethics cases decided in different jurisdictions be developed with a view to identifying examples of universally relevant ethical challenges faced by judges across legal systems and regions, and requested the Coordinator to develop a general ethics curriculum and manual capable of being adopted for use by different jurisdictions and containing ethics issues of general application.
(g)That efforts should be made to secure the participation in the Group of at least four or five respected senior Justices from South America, Canada, Eastern Europe and Asia-Pacific, bearing in mind the importance of an equitable gender balance.
The Group accepted with gratitude the offer of BMZ to support the work of the Group on a more extensive basis, through funding secured from the Siemens Integrity Initiative, Germany.2
1 In the absence of the Chairperson, each of the seven sessions was chaired by a member of the Group.
2 The application by GIZ to secure funds from this source for the work of the Group was not successful.
The Eighth Meeting, Berlin, Germany, 2020
On the invitation of Dr Rudolf Mellinghoff, President of the Federal Supreme Finance Court of Germany, the Judicial Integrity Group held its eighth meeting at the Maritim Hotel in Berlin, Germany, on January 28th and 29th 2020. The meeting was facilitated by Deutsche Gesellschaft fur Internationale Zusammenarbeit (GIZ) on behalf of the German Ministry for Economic Co-operation and Development (BMZ), and in collaboration with the United Nations Office on Drugs and Crime, Vienna (UNODC). The participants were:
›› Former Justice of the High Court Michael D. Kirby (Australia)
›› Former Chief Justice Dr Benjamin Odoki (Uganda)
›› Deputy Chief Justice of the Supreme Constitutional Court Dr Adel Omar Sherif (Egypt)
›› Former President of the Cour de Cassation Christine Chanet (France)
›› Former Deputy President of the Supreme Court The Lord Mance (United Kingdom)
›› President of the Federal Supreme Finance Court Dr Rudolf Mellinghoff (Germany)
›› Chief Justice Dr Mogoeng Mogoeng (South Africa)
›› President of the Caribbean Court of Justice Dr Adrian Saunders
›› Chief Justice Dr Mathilda Twomey (Seychelles)
›› Vice-President of the Constitutional Court Daniela Salazar Marin (Ecuador)
›› Former Justice of the Supreme Court Shiranee Tilakawardena (Sri Lanka)
Special Guest
›› Chief Justice Said Marie Amr (Egypt)
Observers
›› Mr Michael Roll (BMZ)
›› Mr Daniel Seidler (GIZ)
›› Ms Tatiana Balisova (UNODC)
Coordinator and Rapporteur
›› Dr Nihal Jayawickrama
At the commencement, the members observed two minutes silence in memory of three members of the Group who had passed away since the last meeting: Chief Justice of South Africa Pius Langa, former Chief Justice of India P.N. Bhagwati, and former Vice-President of the International Court of Justice and Chairperson of the Group C.G. Weeramantry.
By consensus, the members elected Justice Rudolf Mellinghoff as Chairperson of the Group in succession to the late Judge Weeramantry and, on the proposal of the Chairperson, endorsed by acclamation the appointment of Justice Odoki and Justice Tilakawardena as Deputy Chairpersons. The Group also agreed that Dr Nihal Jayawickrama should continue as the Coordinator and should also function as the Rapporteur of the Group.
The Group agreed that its principal focus at this stage should be the updating and revision of the Commentary on the Bangalore Principles, avoiding, if possible, any amendment of the Bangalore Principles itself. The Group then proceeded to consider five discussion papers prepared by the Rapporteur on the following subjects:
(a)“Courage” as a new judicial value or as an attribute of an existing value.
(b)The use of social media by judges.
(c)Gender-related integrity issues.
(d)Conflict of interest and recusal.
(e)Judicial immunities.
The Group next proceeded to consider its future work programme. Among the suggestions made were that the Group should consider intervening whenever a judge was victimized; that the Group should establish links with organizations such as the IBA Human Rights Committee, the Venice Commission, and the Conference of Chief conjudicial conferences whenever invited to participate; and that an archive for material relating to the Group should be established. However, the Group recognized that its immediate task was the preparation of the updated and revised Commentary on the Bangalore Principles.
The representative of UNODC assured the Group that UNODC would continue to assist the group in the updating and revision of the Commentary and would convene a dedicated Expert Group Meeting to validate the results of the revision process. The representative of GIZ expressed his willingness to ensure that the Group’s website is updated with relevant new material.
Achievements of the Group
Survey Instruments
At its Preparatory Meeting in Vienna in 2000, it was agreed that research should be undertaken to create a survey instrument for the collection of data relating to judicial corruption in order that specific problem areas may be identified, and the effectiveness of subsequent reforms tracked. At the Second Meeting in Bangalore in 2001, the Coordinator presented (a) draft survey instruments designed to ascertain the extent of corruption within the judicial system, and (b) draft case audits designed to ascertain the procedural “road-blocks” responsible for delays in judicial proceedings.
The survey instruments were prepared with assistance from the Public Affairs Centre of Bangalore, and were designed to obtain information anonymously from judges, lawyers, lawyers’ clerks, court staff, court users, accused persons, retired judges and law firms. At the Third Meeting in Colombo in 2003, the draft survey instruments were examined and approved, and the Chief Justices of Uganda, Nigeria and Sri Lanka agreed to undertake pilot programmes in their respective jurisdictions.
The reports of these pilot programmes have been published.1 The principal systemic weaknesses identified in the surveys of court users and other stakeholders conducted in the pilot programmes were:
(a)Lack of adequate training for judges
(b)Delay and lethargy in the judicial system
(c)Length of court proceedings
(d)Lack of skill in the English language amongst some judges
(e)The disappearance of court records
(f)Prejudice
(g)Inappropriate socializing of judges and lawyers
(h)Variations in sentencing
(i)Delay in delivering judgments
(j)Expensive private legal serves
(k)Unofficial payments required to be made.
The Group’s determinations in this regard are attached as Annex “A
1 Centre for Basic Research, Final Report on Judicial Integrity in Uganda, November 2002; Nigerian Institute of Advanced Legal Studies, Summaries of Findings of Surveys conducted in Lagos and Borno States (September 2002); The Marga Institute (Sri Lanka Centre for Development Studies), A System Under Siege – An Inquiry into the Judicial System of Sri Lanka (January 2003).
The Bangalore Principles of Judicial Conduct
In 2000, at the request of the Group, the Coordinator prepared an initial draft statement of principles of judicial conduct. It was not an attempt to reinvent the wheel. Instead, it drew on rules and principles already expressed in national codes of judicial conduct (wherever they existed) and in regional and international instruments. In 2001, at the meeting of the Group in Bangalore, after three days of discussion, the Group agreed upon the text of a document that came to be known as the Bangalore Draft Code of Judicial Conduct. The draft suffered from a weakness in that it was the product of judges of the common law tradition. It needed to be authenticated by judges of other legal traditions as well.
Over the next twenty months, the Bangalore Draft was disseminated widely among judges of both common law and civil law systems. It was presented to, and discussed at, several judicial conferences and meetings attended by Chief Justices and senior judges from over 75 countries. On the initiative of Dato Param Cumaraswamy, the UN Special Rapporteur on the Independence of Judges and Lawyers, the American Bar Association’s offices in Central and Eastern Europe caused the Bangalore Draft to be translated into the national languages of Albania, Bosnia and Herzegovina, Bulgaria, Croatia, Kosovo, Romania, Serbia and Slovakia, and then reviewed by Judges, Judges’ associations and Constitutional and Supreme Courts of these countries.
A significant contribution towards its evolving form was made by the Consultative Council of European Judges (CCJE) which commissioned an expert study of the Bangalore Draft. Thereafter, at a meeting in Strasbourg, France, in June 2002, chaired by Lord Justice Mance of the United Kingdom, to which the Coordinator of the Group and the UN Special Rapporteur on the Independence of Judges and Lawyers were invited, the CCJE conducted a full and frank discussion from the perspective of the civil law system, and then adopted a comprehensive report on specific provisions of the draft.
In the light of the comments and criticisms received, and in order to ensure that the final document faithfully reflected the position of civil law jurisdictions, the Bangalore Draft was further revised by reference to more recent national codes of judicial conduct and draft Opinions of the CCJE and placed before a Round-Table Meeting of Chief Justices drawn principally from the civil law system.
The Round Table Meeting, Peace Palace, The Hague, 2002
The revised version of the Bangalore Draft was placed before a Round-Table Meeting of Chief Justices (or their representatives) from civil law countries, held in the Japanese Room of the Peace Palace at The Hague, Netherlands – the seat of the International Court of Justice – on 25th and 26th November 2002. The meeting was facilitated by the Department for International Development of the United Kingdom, supported by the United Nations Centre for International Crime Prevention, Vienna, and the Office of the UN High Commissioner for Human Rights, Geneva, and organized with the assistance of the Director-General of the Carnegie Foundation at The Hague. The working languages were English, French and Spanish. The participants at this meeting were:
›› Judge C.G. Weeramantry, Ad-Hoc Judge of the International Court of Justice (Chairperson)
›› Judge Vladimir de Freitas (Federal Court of Appeal of Brazil)
›› Chief Justice Iva Brozova (Czech Republic)
›› Chief Justice Mohammad Fathy Naguib (Egypt) assisted by Justice Dr Adel Omar Sherif
›› Conseillere Christine Chanet (Cour de Cassation of France)
›› President Genaro David Gongora Pimentel (Suprema Corte de Justicia de la Nacion of Mexico)
›› President Mario Mangaze (Supreme Court of Mozambique)
›› President Pim Haak (Hoge Raad der Nederland)
›› Justice Trond Dolva (Supreme Court of Norway)
›› Chief Justice Hilario Davide (Philippines) assisted by Justice Reynato S. Puno
Judges of the International Court of Justice
›› Judge Raymond Ranjeva (Madagascar)
›› Judge Geza Herezegh (Hungary)
›› Judge Carl-August Fleischhauer (Germany)
›› Judge Abdul G. Koroma (Sierra Leone)
›› Judge Rosalyn Higgins (United Kingdom)
›› Judge Francisco Rezek (Brazil)
›› Judge Nabil Elaraby (Egypt)
›› Ad-Hoc Judge Thomas Frank (United States of America)
Observer
›› Dato Param Cumaraswamy
UN Special Rapporteur on the Independence of judges and Lawyers
›› Jan van Dijk
Deputy Director, UNCICP, Vienna
Rapporteur
›› Dr Nihal Jayawickrama
Resource Persons
›› Jeremy Pope
Executive Director, Centre for Innovation and Research, Transparency International, London
›› Michael Anderson
Senior Justice Adviser, DfID, London
›› Dr Petter Langseth
Programme Manager, Global Programme Against Corruption, UNCICP, Vienna
The Bangalore Draft was examined in detail at this meeting. While there was significant agreement concerning the core values, their application was subjected to several amendments. The title too was changed; the final draft that emerged from this meeting being “The Bangalore Principles of Judicial Conduct”.
The 59th Session of the UN Commission on Human Rights, 2003
The Bangalore Principles of Judicial Conduct, translated into Russian, Chinese, French, Spanish and Arabic, were annexed to the report presented to the 59th Session of the Commission on Human Rights in April 2003 by the UN Special Rapporteur on the Independence of Judges and Lawyers, Dato Param Cumaraswamy. The Commission, by a resolution adopted without dissent, noted the Bangalore Principles of Judicial Conduct, and brought those Principles “to the attention of Member States, the relevant United Nations organs and intergovernmental and non-governmental organizations for their consideration”.1
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.
Commission on Crime Prevention and Criminal Justice, 2006
In April 2006, at its 16th session in Vienna, the UN Commission of Crime Prevention and Criminal Justice (CCPCJ) adopted the text of a resolution which it recommended to the UN Economic and Social Commission (ECOSOC) entitled “Strengthening basic principles of judicial conduct”. Prior to the debate on the resolution, UNODC convened a “side event” at which Dr Nihal Jayawickrama explained the drafting process and the contents of the Bangalore Principles and responded to questions from the delegates. In the Commission, certain procedural issues were raised, one being whether a commission consisting of representatives of the executive had the authority to adopt principles of conduct for the judiciary. Discussion on the resolution was adjourned for two days to enable the sponsor of the resolution, the Delegation of Nigeria, to dispel any misgivings and seek to achieve a consensus. Eventually, an amended resolution was adopted without a vote, with the Delegations of Egypt, France, Germany, and the Philippines joining in as co-sponsors.
Economic and Social Council, 2006
In July 2006, the Economic and Social Council of the United Nations (ECOSOC) adopted, without a vote, resolution 2006/23: Strengthening basic principles of judicial conduct in which it:
(a)Invited Member States to encourage their judiciaries to take into consideration the Bangalore Principles when reviewing or developing rules with respect to the professional and ethical conduct of members of the judiciary,
(b)Emphasized that the Bangalore Principles of Judicial Conduct represent a further development and are complementary to, the UN Basic Principles on the Independence of the Judiciary 1985,
(c)Acknowledged the important work carried out by the Judicial Integrity Group under the auspices of UNODC that contribute to the development and dissemination of standards and measures to strengthen judicial independence, impartiality and integrity,
(d)Requested UNODC to continue to support the work carried out by the Judicial Integrity Group,
(e)Invited Member States to make voluntary contributions to UNODC to support the work of the Judicial Integrity Group,
(f)Invited Member States to submit to the Secretary-General their views regarding the Bangalore Principles of Judicial Conduct and to suggest revisions, as appropriate, and
(g)Requested UNODC to convene an open-ended intergovernmental expert group, in co-operation with the Judicial Integrity Group, to develop a Commentary on the Bangalore Principles of Judicial Conduct, taking into account the views expressed and the revisions suggested by Member States.2
Fourteen Member States submitted their views concerning the Bangalore Principles of Judicial Conduct. In March 2007, in his report to ECOSOC, the UN Secretary General noted as follows:
All of the responding States welcomed the "Bangalore Principles" as a useful basis for the development of domestic standards and rules governing the professional conduct of judges. Many States regarded the guidance contained in the Principles as a valuable tool for strengthening the independence, impartiality, integrity, propriety, competence and diligence of judges, as well as to ensure equality of treatment for all before the courts. Ten of the responding States informed the UN Secretary-General that their judiciaries had already adopted standards and rules that complied with the values and guidelines enshrined in the "Bangalore Principles", while four reported that they were in the process of reviewing existing professional standards and rules of judicial conduct in the light of the "Bangalore Principles".3
Early Impact of the Bangalore Principles
The United Nations
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:4
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.5 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.6
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.7
Recent references to the Bangalore Principles
The United Nations
In her 2015 report to the UN General Assembly, the UN Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, concluded thus:
Judicial independence and impartiality also constitute a conventional obligation, as shown by the requirement of a “competent, independent and impartial tribunal” established in article 14, paragraph 1, of the International Covenant on Civil and Political Rights, which, as asserted by the Human Rights Committee, is an absolute right that is not subject to any exception (see CCPR/C/GC/32, para. 19). Moreover, as enshrined in the "Bangalore Principles of Judicial Conduct", judicial independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial.
. . . . . . . . . .
In 2015, we celebrate the thirtieth anniversary of the Basic Principles on the Independence of the Judiciary and the twenty-fifth anniversaries of both the Basic Principles on the Role of Lawyers and the Guidelines on the Role of Prosecutors. Looking towards the future, it is the Special Rapporteur’s duty to plead for renewed attention to and the promotion of existing international laws, standards, principles and guidelines on judicial independence and impartiality and the independence of the legal profession.
In the light of what the Special Rapporteur has witnessed during her mandate, those three instruments, together with the "Bangalore Principles on Judicial Conduct" and relevant conventional provisions, in particular article 14 of the International Covenant on Civil and Political rights, remain absolutely essential to the promotion and protection of the independence of judges, lawyers, and prosecutors throughout the world. The most fundamental rights of judges, lawyers and prosecutors are still blatantly violated on a daily basis across the world, and that should deserve the full attention of Member States.
In his 2019 Report to the UN General Assembly, the UN Special Rapporteur on the Independence on Judges and Lawyers, Diego Garcia-Sayan, made several references to the Bangalore Principles. In particular, he noted thus:
The first mandate holder, Dato’ Param Cumaraswamy, submitted the "Bangalore Principles" of Judicial Conduct to the Commission on Human Rights at its fifty-ninth session (see E/CN.4/2003/65, annex). The "Bangalore Principles" outline the values of independence, impartiality, integrity, propriety, equality, and competence and diligence as necessary to ethical judicial conduct. In the "Bangalore Principles", the role of the Basic Principles in promoting a judiciary that is independent from the other branches of the State is directly recognized. In addition, the "Bangalore Principles" include the aim to further develop judicial independence by addressing the conditions needed to promote the ethical conduct of members of the judiciary.
In its resolution 2006/23, on strengthening basic principles of judicial conduct, the Economic and Social Council noted the complementary nature of the "Bangalore Principles" to the Basic Principles and requested UNODC to develop a commentary on the Bangalore Principles.
The Commentary on the "Bangalore Principles" of Judicial Conduct, issued in 2007 by UNODC with the assistance of the Judicial Group on Strengthening Judicial Integrity,5 provides guidelines for the accurate interpretation of each of the six values listed in the "Bangalore Principles". The Judicial Group adopted measures for the effective implementation of the "Bangalore Principles" in January 2010, in which both the responsibilities of the judiciary and the responsibilities of the State in that regard are broken down.
The "Bangalore Principles" should be considered part of the Basic Principles and, accordingly, should be incorporated into them. In her report to the General Assembly, the former mandate holder, Gabriela Knaul, concluded that the Basic Principles, together with the "Bangalore Principles", remained absolutely essential to the promotion and protection of the independence of judges, lawyers and prosecutors throughout the world (A/70/263, para. 105).
. . . . . . . . . .
The "Bangalore Principles", considered to be complementary to the Basic Principles, were adopted in order to establish an international standard for the ethical conduct of judges, to provide guidance on universal judicial ethics and to strengthen judicial integrity. They therefore represent an important attempt to fill the gap in the international legal framework regarding judicial accountability ( A/HRC/26/32, para. 29).
In the preamble to the "Bangalore Principles", it is explicitly stated that the Principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge. Principle 6 further provides that judges should devote their professional activity to judicial duties and that their conduct should not be incompatible with those duties.
The concept of judicial accountability is formulated in the "Bangalore Principles" on the basis of the pillars of independence, impartiality, integrity, propriety, equality, and competence and diligence. None of those values can be fully achieved in isolation. Likewise, the challenges faced by judiciaries across the globe come in various forms, all of which must be taken into account.
The "Bangalore Principles" are of essential importance when dealing with the subject at hand. The fact that they were crafted by judges, working in civil and common law jurisdictions, gives them significant legitimacy and credibility among the judiciary. Even if it is for each national judiciary to adopt this framework regulating judicial conduct, having regard to their own judicial systems, the "Bangalore Principles" can play a key role in guaranteeing the independence of the judiciary. In this respect, it is worth mentioning that the main utility of the Bangalore Principles lies in the fact that they are considered to be the basis for the development of domestic standards and rules governing the professional conduct of judges (E/CN.15/2007/12, para. 5).
. . . . . . . . . .
Recommendations
The Special Rapporteur recommends that initiatives aimed at linking the Basic Principles, the "Bangalore Principles" and the Convention against Corruption be fostered. In this regard, the Basic Principles should not only be interpreted jointly with the Guidelines on the Role of Prosecutors, the "Bangalore Principles" and the Convention in order to fill the gaps therein, but also be expanded in order to accommodate the important issues included in those international standards.
The Convention against Corruption is at the core of national and international initiatives to fight corruption in the judiciary, promoting the implementation and application of common standards and best practices. As a key tool to address corruption in general, the Convention, as a whole, should also be considered a fundamental international instrument complementing the Basic Principles.
The main components of the "Bangalore Principles" should be understood as part of the Basic Principles.
In his 2020 Report to the UN General Assembly, the UN Special Rapporteur on the Independence on Judges and Lawyers, Diego Garcia-Sayan, noted thus:
As already indicated in 2019 (A/74/176, para. 6), the Special Rapporteur believes that incorporating the "Bangalore Principles of Judicial Conduct" into the Basic Principles on the Independence of the Judiciary 12 is an effective measure for addressing the impact of corruption on the administration of justice. This initiative would make it possible to integrate into the Basic Principles the principles of integrity, propriety, equality, and competence and diligence set out in the "Bangalore Principles of Judicial Conduct" and that are absent from the text adopted in 1985.
. . . . . . . . . .
Recommendation
The Basic Principles on the Independence of the Judiciary should systematically be articulated in connection with the "Bangalore Principles" and the United Nations Convention against Corruption, in the light of new situations that have arisen since the adoption of the Principles in 1985. This updated approach not only to that instrument but also to other rules and principles affecting the judiciary or prosecution services is essential for ensuring appropriate institutional processes for sustainable development.
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.8
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 theBangalore 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 them 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.
Finally, a sixteen-year journey ended when, in 2016, the United Nations formally included the Bangalore Principles of Judicial Conduct in its Compendium of UN Standards and Norms relating to the Administration of Justice.
1 Commission on Human Rights resolution 2003/43.
2 ECOSOC resolution 2006/23: Strengthening basic principles of judicial conduct.
3 Strengthening basic principles of judicial conduct, Report of the Secretary-General, 13 March 2007, UN document E/CN.15/2007/1, paragraph 5.
4 A/HRC/4/25, paragraph 19.
5 A/HRC/8/4 of 13 May 2008 and A/HRC/11/41 of 24 March 2009.
6 A/HRC/14/26 of 9 April 2010.
7 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”.
8 General Recommendation XXXI on the prevention of racial discrimination in the administration and functioning of the criminal justice system, UNGA Official Records, Supplement No.18, A/60/18, pp.98-108 at 106-107.
Commentary on the Bangalore Principles
At its meeting in Vienna in October 2005, the Judicial Integrity Group noted that judges, lawyers and law reformers had, at several meetings, stressed the need for a commentary or an explanatory memorandum in the form of an authoritative guide to the application of the Bangalore Principles. The Group agreed that such a commentary or guide would enable judges and teachers of judicial ethics to understand not only the drafting and cross-cultural consultation process of the Bangalore Principles and the rationale for the values and principles incorporated in it, but would also facilitate a wider understanding of the applicability of those values and principles to issues, situations and problems that might arise or emerge. Accordingly, the Group decided that, in the first instance, the Coordinator would prepare a draft commentary, which would then be submitted for consideration and approval by the Group.
The Open-ended Intergovernmental Expert Group Meeting
The Open-ended Intergovernmental Expert Group Meeting convened by UNODC in pursuance of ECOSOC Resolution 2006/23 was held at the Vienna International Centre on March 1st and 2nd 2007 in conjunction with the Fifth Meeting of the Judicial Integrity Group. The meeting was chaired by Judge Weeramantry (day one) and Chief Justice Pius Langa (day two). In addition to members of the Group, the special guests and observers, the participants included judges, justice ministry officials and individual experts from Algeria, Argentina, Azerbaijan, the Dominican Republic, Egypt, Finland, France, Germany, Hungary, Indonesia, Islamic Republic of Iran, Latvia, the Libyan Arab Jamahiriya, Moldova, Morocco, Namibia, Nepal, Netherlands, Nigeria, Pakistan, Panama, Romania, Republic of Korea, Serbia, Spain, Sri Lanka, Syrian Arab Republic, Uganda, and the United States of America.
As mandated by ECOSOC, a background paper prepared by the UN Secretariat containing the Member States’ views concerning the Bangalore Principles, including proposals for its revision, was tabled. The draft Commentary on the Bangalore Principles prepared by the Coordinator was also tabled together with a memo entitled “Amendments proposed by Member States and Comments thereon”. The UN Secretary-General’s report on this meeting stated, inter alia, that,
The Meeting conducted a detailed review of the draft text of the Commentary on the Bangalore Principles of Judicial Conduct, which had been prepared by the Coordinator of the Judicial Integrity Group in close consultation with members of that Group. A wide range of changes were suggested by participants, all with a view to improving the quality of the document and ensuring its relevance and applicability across different legal traditions.
With regard to the specific comments provided by Member States concerning potential amendments or additions to the Bangalore Principles, the participants were of the view that, since the text of the Principles had only recently been endorsed by ECOSOC, it was premature to consider amending it. In addition, as most of the comments were aimed at clarifying and developing the values and guidelines already contained in the Principles rather than raising new points, it was felt that it would be more appropriate to insert these comments in the Commentary rather than in the text of the Principles itself.1
The Coordinator was requested to prepare the final version of the Commentary which, upon being approved by the Members of the Group, would be published, and disseminated by UNODC as a product of the Group.
Economic and Social Council, 2007
In 2007, the Economic and Social Council of the United Nations (ECOSOC) adopted, without a vote, resolution 2007/22: Strengthening Basic Principles of Judicial Conduct in which it:
(a) requested UNODC to translate the Commentary on the Bangalore Principles into all official languages of the United Nations and to disseminate it to Member States, international and regional judicial forums and appropriate organizations,
(b) requested UNODC to develop and implement technical cooperation projects and activities aimed at supporting Member States, upon their request, in developing rules with respect to the professional and ethical conduct of the members of the judiciary, as well as in their implementation of the Bangalore Principles of Judicial Conduct,
(c) requested the Secretariat to submit the Bangalore Principles of Judicial Conduct and the Commentary to the Conference of States Parties to the UN Convention against Corruption at its second session.2
In September 2007, UNODC published the 175-page Commentary in all the UN languages
1 Strengthening basic principles of judicial conduct, Report of the Secretary-General, 13 March 2007, UN document E/CN.15/2007/1, paragraph 10.
2 ECOSOC Resolution 2007/22
Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct.
At its Fifth Meeting in Vienna in 2007, the Group agreed that it had an obligation to provide guidelines for the effective implementation of the Bangalore Principles. Having examined the framework for a statement of procedures suggested in a memo tabled by the Coordinator, the Group requested the Coordinator to prepare a comprehensive draft statement for discussion with a view to the statement being considered and adopted at the next meeting. At its Sixth Meeting in Lusaka in 2010, the draft Measures for the Effective Implementation of the Bangalore Principles prepared by the Coordinator were reviewed, revised and adopted.
These Measures have since been incorporated in the Implementation Guide and Evaluative Framework for Article 11 of the United Nations Convention Against Corruption (UNCAC) published by UNODC.in 2015.
Principles of Conduct for Judicial Personnel
At its Third Meeting in Colombo in 2003 the Group reviewed and revised a draft prepared by the Coordinator, and at its Fourth Meeting in Vienna in 2005 formally adopted, the Principles of Conduct for Court Personnel. A consultation process with selected court registrars preceded their final adoption. The need for such principles of conduct was underscored in the national surveys of court-users and stakeholders conducted in Uganda, Sri Lanka, and Nigeria as well as in previous public perception surveys conducted elsewhere. In 2004, the Supreme Court of the Philippines promulgated a Code of Conduct for Judicial Employees based on the original draft as amended in Colombo.
Recent Developments
There have recently been several significant developments.
Development 1
Arising out of the 2015 UN Congress on Crime held in Doha, was the launch by UNODC of the Global Judicial Integrity Network. The Declaration on Judicial Integrity adopted at its Launch Meeting in Vienna in April 2018 by members of judiciaries and other justice sector stakeholders:
“(i) recalls the pioneering and continuing work carried out by the Judicial Integrity Group, including the development of the "Bangalore Principles of Judicial Conduct", the Commentary thereto and the Implementation Measures;
(ii) reaffirms its commitment to the effective implementation of the "Bangalore Principles of Judicial Conduct", as endorsed by ECOSOC Res.2006/23; and
(iii) decides to support the continuing efforts of the Judicial Integrity Group towards the strengthening of judicial integrity.”
The GJIN is an initiative that seeks to bring together judges’ associations and judicial networks to exchange good practices, and provide capacity-building support, advisory services, tools, networking opportunities, and other relevant resources to national judiciaries. The Judicial Integrity Group is represented on its 12-member Advisory Board by Dr Nihal Jayawickrama.
At the Launch Meeting, the Judicial Integrity Group organized a well-attended thematic breakout session on “The Bangalore Principles after 18 years”. The moderator was Justice Christine Chanet, and the panelists were Lord Mance, Justice Adrian Saunders, Justice Shiranee Tilakawardane and Jeffrey Apperson. Dr Nihal Jayawickrama served as rapporteur. Having discussed five pre-arranged questions, the outcome of the session was that, after 18 years, the Bangalore Principles, the Commentary and the Implementation Measures now require to be reviewed and updated to meet contemporary challenges, and that the Judicial Integrity Group should initiate a process to do so.
Development 2
On the invitation of UNDP Turkey and the Court of Cassation of Turkey, the Chief Justices and senior justices of 37 countries, from all the continents, met on four occasions between 2013 and 2018 to develop principles designed to achieve transparency in the judicial process. Dr Nihal Jayawickrama was actively involved in the drafting of the Istanbul Declaration on Transparency in the Judicial Process, Measures for the Effective Implementation of the Istanbul Declaration, and The Resource Guide and Evaluative Framework. Two other members of the Judicial Integrity Group, Dato’ Param Cumaraswamy and Justice Shiranee Tilakawardane also participated in the processes leading to the development of these instruments. The ECOSOC resolution of May 2019 on Enhancing transparency in the judicial process, which endorsed the two instruments and invited Member States to take them into consideration when formulating their programmes and legislative reforms in the administration of justice, contained the following preambular statement:
“Bearing in mind the 'Bangalore Principles on Judicial Conduct', in which the values of independence, impartiality, integrity, propriety, equality, competence and diligence in the exercise of the judicial office are emphasized, and taking note of the commentary thereon”,
Development 3
In Cairo, the annual High-Level Meetings of the Chief Justices of the African Constitutional and Supreme Courts, in the organization and conduct of which Justice Adel Omar Sherif has been responsible, repeatedly “recognized with appreciation the efforts of the Judicial Integrity Group and its members at both national and international levels, to promote judicial integrity, including through the development of the Bangalore Principles, the Commentary, and the Implementation Measures”. At the 2019 Meeting, the Chief Justices resolved to “co-operate with the Judicial Integrity Group to exchange expertise and resources with the overarching aim of assisting judiciaries in Africa in promoting the highest standards of integrity and independence, and in increasing public trust and confidence in judicial institutions on the continent”.
Development 4
These developments at the international level underscore a global concern about the state of national judicial systems: a concern that made it necessary in 2000 for the Judicial Integrity Group to look beyond judicial independence and seek to establish the concept of judicial accountability.
Membership and Organization
In terms of the 2007 Memorandum of Understanding, as amended in 2020, the Group consists of such number of active members and honorary members as the Group determines from time to time, the number of active members not exceeding fifteen, being persons who hold, or have held, high judicial or legal office at a national, regional, or international level. The Group, by consensus, determines to admit new members, bearing in mind the importance of ensuring, so far as is practicable, gender diversity, and either an equitable geographical distribution or the representation of the major legal systems of the world. Members join the Group on the understanding that they will resign (or shall be deemed to have resigned) should they become personally involved in a controversy that has the potential adversely to affect the work of the Group.
Retirement from membership of the Group is entirely voluntary and should ordinarily take place when a member believes that he or she can no longer play an active role in promoting the objectives of the Group, or if he or she has undertaken an assignment that is incompatible with membership of the Group. Upon retirement, the Group may invite such person to serve the Group in an advisory capacity as an Honorary Member.
The management and day-to-day operations of the Group, including the implementation of the decisions of the Group, the organization of its meetings and maintaining a record of such meetings, the implementation of the decisions of the Group, and the preparation or commissioning of research papers when necessary, is the responsibility of the Coordinator/Rapporteur.
Dr Nihal Jayawickrama has served as Coordinator from the inception of the Group, and now serves also as the Rapporteur. He is a former Attorney-General and Permanent Secretary to the Ministry of Justice of Sri Lanka, Ariel F. Sallows Professor of Human Rights at the University of Saskatchewan, Canada, Associate Professor of Law at the University of Hong Kong, and Executive Director of Transparency International, Berlin. He is also the author of The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, 1200 pp, 2002; 2nd ed.2017). He was assisted by the late Jeremy Pope, former Director of the Legal and Constitutional Affairs Division of the Commonwealth Secretariat and Managing Director of Transparency International. Jeremy Pope passed away in 2012.
Funding
The Group, by consensus, agrees to seek and receive funding for the purpose of realising its objectives, including the management of the Group’s activities and the organization of its meetings, from any institution, organization, foundation, government or individual the Group deems appropriate. Such funds are usually received and administered, on behalf of the Group, by a designated institution or organization.
The first meeting of the Group in 2000 was funded by UNCICP (now UNODC), Vienna. Thereafter, the Department for International Development (DfID), United Kingdom, funded the research and drafting, the dissemination and consultation process, and the finalization and translation of the Bangalore Principles, including the meeting of the Group held in Bangalore in 2001 and the roundtable meeting of civil law Chief Justices held at The Hague in 2002. DfID also provided funding to develop the survey instruments, to conduct pilot programmes in Uganda and Sri Lanka, for the management of the judicial integrity programme, and generally to sustain the Group between 2000 and 2003. Its funds were administered by the London office of Transparency International.
UNODC Vienna funded the third meeting of the Group held in Colombo in 2003, and the fourth and fifth meetings of the Group held in Vienna in 2005 and 2007 respectively.
From 2006, the Group was supported by the Deutsche Gesellschaft fur Technische Zusammenarbeit (GTZ) GmbH, Germany, which funded the sixth and seventh meetings of the Group held in Lusaka and Garmisch Partenkirchen respectively and provided funding to research and prepare the Draft Commentary on the Bangalore Principles of Judicial Conduct and the Draft Statement of Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct.
The eighth meeting of the Group held in Berlin was facilitated by Deutsche Gesellschaft fur Internationale Zusammenarbeit (GIZ), which organization has also very kindly undertaken the responsibility for maintaining the website of the Group.
Determinations by the Judicial Integrity Group
At its Preparatory Meeting in Vienna in 2000, it was agreed that research should be undertaken to create a survey instrument for the collection of data relating to judicial corruption in order that specific problem areas may be identified, and the effectiveness of subsequent reforms tracked. At the Second Meeting in Bangalore in 2001, the Coordinator presented (a) draft survey instruments designed to ascertain the extent of corruption within the judicial system, and (b) draft case audits designed to ascertain the procedural “road-blocks” responsible for delays in judicial proceedings.