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					Seminar on
“The Role of Lawyers, the Bar and the Bench in Preventing
and Combating Corruption within the Judicial System”,
hosted by The Lawyers Council of Thailand and the
American Bar Association, Asia Law Institute,
United Nations Conference Centre, Bangkok, Thailand,
19-20 February 2007.


    THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT

                              Dr Nihal Jayawickrama
                        Co-ordinator, Judicial Integrity Group



Judicial Corruption


Seven years ago, the United Nations took the unusual step of inviting a
small group of Chief Justices to meet in Vienna. The purpose of that
meeting was to place before them credible evidence that, in many
countries, across all the continents, the people were losing confidence in
judicial systems because they thought the judiciary was corrupt. This
evidence had emerged through service delivery and public perception
surveys, as well as through commissions of inquiry established by
governments. By corruption, I mean not only the acceptance of money
from litigants or lawyers, but also other ways in which a judge may profit
from judicial office.


In addition to money, profit may include also position, influence, power
or personal comfort. For example, if a judge were to “trim or tailor his
judicial decision in order to ingratiate himself with, or avoid offending,
any member of the executive who he thought would be influential in
deciding on his future promotion, or even any other member of the




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judiciary whom he thought might be consulted”,1 that would constitute
corruption. So too would the political patronage through which a judge
may acquire his office, a promotion, an extension of service, preferential
treatment, or the promise of employment after retirement, if and when the
executive makes demands on such judge. Similarly, when a family
member regularly appears before a judge, or when a judge selectively
ignores sentencing guidelines in cases where particular counsel appear,
the conduct of the judge would give rise to the suspicion of corruption.
Frequent socializing with particular members of the legal profession, the
executive or the legislature, or with litigants or potential litigants, is
almost certain to raise, in the minds of others, the suspicion that the judge
is susceptible to undue influence in the discharge of his duties. Judicial
corruption is a phenomenon that is difficult to detect because those who
engage in, or benefit from, corruption will, of course, not admit it.


Judicial Integrity Group


The Judicial Integrity Group – as this group of Chief Justices has now
become known – agreed that what was necessary was a principle of
judicial accountability that would complement the existing principle of
judicial independence. If the judiciary was perceived to be corrupt, the
primary responsibility for putting the house in order lay with the people
who lived in it – the judges. They should identify the systemic
weaknesses in the judicial process that enabled court officials to demand
money in the course of a judicial proceeding, and initiate reforms to
remedy those weaknesses. But more importantly, the judges must set
themselves an appropriate standard of judicial conduct that conformed to

1
  Lord Bingham, Lord Chief Justice of England, “Judicial Independence”, Annual lecture 1996,
Judicial Studies Board, England, www.jsboard.co.uk.


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public expectations, and enforce those standards themselves. If these
steps are taken, the Chief Justices believed that the judiciary would have
moved forward significantly towards regaining and retaining the respect
and confidence of the community.


The Bangalore Principles of Judicial Conduct


Accordingly, the Judicial Integrity Group initiated the process of
formulating a universally acceptable statement of judicial ethics. The
Group first drew on rules and principles already articulated in national
codes of judicial conduct and in regional and international instruments.
Thereafter, it engaged in eighteen months of intensive consultations with
Chief Justices and senior judges from every continent. Finally, at a round-
table meeting of Chief Justices held at the Peace Palace at The Hague,
which was also attended by several Judges of the International Court of
Justice, the Bangalore Principles of Judicial Conduct were adopted. The
Bangalore Principles draws its name from the city in India where the
drafting process first began. The strength of the Bangalore Principles, and
indeed their legitimacy, lies in the fact that they were created by judges,
based on their own experience, and are intended for use by judges. They
have since been endorsed by the UN Commission on Human Rights in
2003, by the UN Commission on Crime Prevention and Criminal Justice
in April 2006, and by the Economic and Social Council of the UN in July
2006. ECOSOC also requested that, in order to facilitate a better
understanding of the Bangalore Principles, an authoritative Commentary
be now developed.


The Bangalore Principles of Judicial Conduct seek to identify six core
values of the judiciary, and then proceeds to state the principle derived


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from each value, followed by more detailed statements of the application
of each principle.


Independence


Of the six values, independence has been identified as the foremost in
priority. Independence is not a privilege or prerogative of judicial office.
It is the responsibility imposed on the judge to enable him to adjudicate a
dispute honestly and impartially on the basis of the law and the evidence,
without external pressure or influence and without fear of interference
from anyone including other judges. It is, of course, the responsibility of
the government to establish by law the institutional arrangements that
would secure the independence of the judiciary, such as a credible
appointment mechanism and security of tenure. The value addressed here
is independence as a state of mind. The relationship between these two
aspects of judicial independence is that an individual judge may possess
that state of mind, but if the court over which the judge presides is not
independent of the other branches of government, judicial independence
is only an illusion. On the other hand, if the institutional arrangements are
in place, but the individual judge is not free of inappropriate connections
with the executive or the legislature or, indeed, with other powerful
forces that have business in the courts, then the judge would have failed
to uphold judicial independence.


Impartiality


The impartiality of a judge must exist both as a matter of fact and as a
matter of perception. The perception of impartiality is measured by the
standard of a reasonable, fair-minded and informed observer. If the judge


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appears to be partial, to be biased or prejudiced against or in favour of a
party, then public confidence in the judiciary is eroded. The reasonable
observer forms his opinion of the judge from the judge‟s conduct both in
and out of court. The kind of activity that the judge may engage in out of
court, the judge‟s physical demeanour in court and the use of insulting,
improper or otherwise inappropriate language to litigants and lawyers,
may all be viewed as manifestations of bias or prejudice.


Integrity


The next value is integrity. In the judiciary, integrity is more than a
virtue; it is a necessity. The components of integrity are honesty and
judicial morality, and the judge is therefore required to maintain high
standards both in private and public life. He or she must not only be a
“good judge”, but must also be a “good person”, although views on what
that means may vary in different quarters of society. The reason for this
lies in the broad range of human experience and conduct upon which a
judge may be called upon to pronounce judgment. If the judge is to
condemn publicly what he or she practices privately, the judge will be
seen as a hypocrite, and that will inevitably lead to a loss of public
confidence in the judiciary. The effect of conduct on the perception of the
community will depend considerably on community standards which may
vary according to place and time. This is particularly evident in respect of
sexual behaviour. But, in general, the public will demand from the judge
conduct which is far above what is demanded of their fellow citizens,
standards of conduct must higher than those of society as a whole,
virtually irreproachable conduct. It is as if the judicial function, which is
to judge others, has imposed a requirement that the judge remain beyond
the judgment of others.


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Propriety


A judge enjoys the same rights and freedoms as other citizens but, in
exercising them, the judge must act with caution. As the subject of
constant public scrutiny and comment, the judge must accept restrictions
on his or her activities that might be viewed as burdensome by the
ordinary citizen. The principle of propriety may be applied to a variety of
situations. These range from the judge‟s conduct in court (such as
preferential treatment to a high government official) to conduct out of
court (such as speaking at length to a litigant in a pending case, even if
the conversation is in fact unrelated to the case). They may include
frequent visits to public bars, excessive gambling, social relationships
with individual lawyers, becoming involved in public controversies,
lending the prestige of the judicial office to advance the private interests
of the judge, a family member or anyone else, the misuse of confidential
information, engaging in inappropriate extra-judicial activities, serving on
commissions of inquiry, accepting gifts of excessive value and the
hospitality of recent acquaintances, and practising law while holding
judicial office. In every case, when in doubt, the question to be asked is:
„how will this look in the eyes of the public?‟, considering that propriety
and the appearance of propriety are essential to the performance of all of
the activities of a judge.


Equality


Fair and equal treatment has long been regarded as an essential attribute
of justice. It is the duty of a judge not only to recognize, and be familiar
with, cultural, racial and religious diversity in society, but also to be free


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of bias or prejudice on grounds such as disability, sexual orientation, and
social and economic status. A judge should not, by speech, gestures or
conduct, manifest gender bias. Using terms of endearment in addressing
female lawyers, or commenting on their physical appearance, or resorting
to any other form of patronising behaviour, would infringe the principle
of equality of treatment. A judge must not make improper and insulting
remarks about litigants and witnesses, or shower abuse on a convicted
prisoner. Judicial remarks should always be tempered with caution,
restraint and courtesy. It is the judge who sets the tone and creates the
environment for a fair trial. Therefore, unequal and differential treatment
of court users, whether real or merely perceived, is unacceptable. All who
appear in court are entitled to be dealt with in a way that respects their
human dignity and fundamental human rights.


Competence and Diligence


The independence of the judiciary confers rights on a judge, but also
imposes ethical duties. These include the duty to perform judicial work
professionally and diligently. This implies that the judge should have
substantial professional ability, acquired, maintained, and enhanced by
the training which the judge has a duty, as well as a right, to undertake. It
is essential that a judge receives detailed, in-depth, diversified training so
that he or she is able to perform the judicial duties with competence. This
requires a judge to keep himself or herself informed about relevant
developments of international law, including international treaties and
other instruments establishing human rights norms, particularly those to
which the judge‟s country is a party. Diligence also requires a judge to
dispose of matters before the court with reasonable promptness, to be



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punctual, to deliver reserved decisions without delay, and to maintain
order and decorum in court, with patience, dignity and courtesy.


Rationale for a code of judicial conduct


Article 11 (1) of the United Nations Convention against Corruption,
which the Kingdom of Thailand signed on 3 December 2003, requires the
State to take measures: (a) to strengthen judicial integrity, and (b) to
prevent opportunities for corruption among members of the judiciary.
Rules with respect to the conduct of members of the judiciary is
mentioned as one these measures. Since this is required to be done in a
manner that does not prejudice judicial independence, it seems
appropriate that the judiciary, acting on its own, should regulate the
conduct of judges through the adoption and enforcement of an
appropriate code of judicial conduct that conforms to international
standards.


Apart from combating the self-destructive effect of judicial corruption,
another contemporary development underscores the relevance of a code
of judicial conduct. Today, the judge‟s function extends beyond dispute
resolution. The judge is also called upon to address broad issues of social
values and human rights, and to decide controversial moral issues, and to
do so in increasingly pluralistic societies. A judge may not be equipped to
do this if he or she is unduly isolated from the community. On the other
hand, if judges should be, and be seen to be, involved in the community
in which they live, it becomes necessary to identify standards of conduct
appropriate to judicial office. A judge is entrusted with the exercise of
considerable power. Its exercise may have dramatic effects upon the lives
and fortunes of those who come before the court. The citizens cannot be


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sure that they or their fortunes will not some day depend upon the judge‟s
judgment. They will not wish such power to be reposed in anyone whose
honesty, ability or personal standards are questionable. It is, therefore,
necessary that there be standards of conduct, both in and out of court,
which are designed to maintain confidence in those expectations.


Enforcement of a code of conduct


A code of judicial conduct is potentially a valuable instrument for self-
regulation. It can provide guidance to judges in the performance of their
judicial duties, while also better informing the public of the judicial role
and offering the community a standard by which to measure and evaluate
the performance of the judicial sector. But a code of judicial conduct will
do little to improve judicial performance and enhance public confidence
if it is not enforceable. Therefore, the challenge facing a national
judiciary is to establish a credible independent mechanism to receive
complaints against members of the judiciary, with protection against
victimization provided to informants, complainants and witnesses, and
protection against intimidation, undue influence and blackmail provided
to judges. The mechanism should secure due process to an impugned
judge, with confidentiality in the preliminary stages of an inquiry if that is
what the judge requests. The mechanism should not be controlled by the
judiciary but must be one in which there is sufficient lay representation to
attract the confidence of the community.


To adopt and enforce appropriate standards of judicial conduct among its
members, and to establish orientation and continuing legal education for
judges, particularly on ethical issues relating to the judicial system, is
now universally recognized as an obligation that goes with judicial office.


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