Professional
independence of judges and lawyers central to the protection and
promotion of human rights, the rule of law and democracy in Asia
A Statement by the Asian
Human Rights Commission
April 15, 2013
The
following is a statement issued by a group of Asian jurists, who met
from 9-11 April in Bangkok, to discuss about threats to professional
freedom of lawyers and the independence of the judiciary in Asia.
Jurists from Sri Lanka, India, Nepal, Bangladesh, Pakistan, Burma,
Thailand, Indonesia, Philippines, South Korea, Vietnam, and Hong Kong
attended the consultation. The Asian Human Rights Commission along
with the Lawyers' Collective of Sri Lanka organised the consultation.
On 11 April 2013, the Government of Bangladesh arrested the Interim
Editor of a Bangla daily, Daily Amardesh, Mr. Mahmudur Rahman. When
the police produced Rahman before the Dhaka Chief Metropolitan
Magistrate's Court, he reportedly said: I know well that if I appoint
any lawyer, he or she will submit prayers for my bail and cancellation
of the remand prayer foolishly. The court will act on whatever
decision comes from the government.
This statement and its insight concerning the absence of judicial
independence are unfortunately resonated in most of Asia. The public
perception in Asia is that, in matters where the government is keen in
persecuting a person, the government dictates the courts to be biased
in favour of the executive, and hence the courts cannot act
independently.
The expectation, that the judiciary is to act independently and
impartially at all circumstances, has eroded in most of Asia. This has
led to a distrustful outlook about judicial independence in Asia. The
spread of such a viewpoint is the reflection of massive changes that
have already taken place or of conditions that have not improved in
Asia, that poses serious threats to the independence of the judiciary
and the rule of law itself in the region.
The participants expressed serious concern about the threats to the
judiciary, arising from different sources and sometimes reflected by
the internal changes within the judiciary itself. The unanimous view
of all the participants is that, the independence of the judiciary
must be taken up as a major concern in Asia, and that it must be
reflected in the interventions by the international community,
including the United Nations in its efforts that are undertaken to
promote and to protect human rights in Asia. Protection of human
rights is seriously undermined and threatened, when citizens cannot
expect their courts to act independently, and to guarantee individual
rights.
Concern about the absence of adequate protection for judges, lawyers,
and litigants was a major sentiment expressed throughout this
consultation. The participants felt that, a citizen commencing the
path of seeking justice through courts, is exposed to serious threats
to his or her life, liberties and to property. A citizen also has to
take into consideration the threats that lawyers themselves are being
exposed to, and the possible unwarranted influences that may affect
the judiciary from acting independently.
Many examples of threats were cited; faced by lawyers, judges and
often litigants and witnesses, when they resort to litigation.
The following is a list of concerns expressed by the participants: (i)
threat of disenrollment of lawyers; (ii) actions of contempt of court
against litigants and lawyers; (iii) attempted abduction of lawyers,
witnesses and litigants; (iv) absence of investigation by the police
on complaints of threats and intimidation of lawyers and litigants;
(v) fabrication of criminal charges against lawyers, litigants and
witnesses; (vi) illegal arrest and custodial torture of lawyers,
litigants and witnesses, in which, often even on complaints, courts
are unable or unwilling to promptly intervene; (vii) close
surveillance by state agencies of lawyers, judges and litigants, that
violates privacy and privilege of professional communications; (viii)
lawyers who are employed in government as well as private sectors
restricted from freely exercising professional freedom; (ix) organised
vilification campaigns of lawyers and judges by state and non-state
actors; (x) intimidation of judges by arbitrarily transferring them
repeatedly or promoting judges tainted with corruption overlooking
seniority; (xi) internal as well as international travel restrictions
imposed upon lawyers.
The above list is not exhaustive. Lawyers who dare to challenge the
smothering of professional freedom risk the loss of practice and
income.
Analysing a recent example, extensive discussions were held on the
impeachment of the Chief Justice of Sri Lanka, Dr. Shirani
Bandaranayake. The Government of Sri Lanka abruptly removed Justice
Bandaranayake from service, when a Supreme Court Bench led by her
delivered judgments that were unfavourable to the government. The
illegal removal of the Chief Justice from office, without adhering to
universally approved fair trial guarantees, itself is a stark
expression of the threats that the judiciary is exposed to while
trying to discharge their duties independently. The dismissal of the
Chief Justice also strongly indicates selection processes, where
persons willing to sacrifice the independence of the judiciary in
favour of the executive, are preferred by the government in such
designations.
The participants highlighted the centrality of the independence of the
judiciary to ensure the protection and promotion of human rights.
Efforts to promote the rule of law and democracy are inseparable from
judicial independence in Asia. Fundamental to this is the elimination
of all threats against the exercise of professional independence of
the judiciary.
It must be restated, that the role of the magistrate, is to protect
the individual from undue interferences from the executive. This
mandate is seriously undermined when the executive makes all efforts
to subjugate magistracy to its administrative writ.
Lawyers are officers of the court. Threats to lawyers are threats to
the independent operation of the judiciary. When the executive
prevents, the possibility of citizens with grievances against the
executive seeking redress through courts, the very notion of the
separation of powers is jeopardised and negated.
The executive, to undermine judicial independence, denies the
judiciary adequate resources. In all Asian states, there are serious
complaints, from the judiciary and the general public, that necessary
budgetary allocations are not provided to judicial institutions. This
has hampered seriously the efficiency of these institutions. In India
for instance, this has led to delays in adjudication, that a case
today takes more than a decade to complete, rendering the concept of
justice itself a misnomer.
The participants further expressed serious concerns about judicial
corruption and accountability. In most Asian states, the judges face
serious allegations of corruption. In Bangladesh for instance, judges
openly demand and receive bribes. In most of Asia, an independent
oversight mechanism that could investigate into judicial corruption
does not exist. Often judges themselves prevent the creation of such
an institution.
The participants affirmed that in Asia, judicial independence as a
subject of discussion is to be brought to the forefront of national,
regional, and international debates. This, the participants confirmed
is the most urgent requirement, without which all discussions about
protection and promotion of human rights, on prevention of corruption,
and on democracy and the rule of law would be meaningless. The
participants urged that the international community, including the
United Nations – particularly its human rights mechanisms – should
prioritise the need to protect the rights of the people to seek
judicial protection and to obtain it within a framework of justice and
fairness.
The participants reiterated that if there is failure in ensuring
judicial independence in Asia, then, much of the global efforts to
promote the rule of law, democracy, and human rights in Asia will not
render any practical and tangible results. Without a concentrated
effort to ensure judicial independence, the participants expressed
fear, that the people living in states where the judiciary does not
enjoy the independent status it disserves, will continue facing huge
stumbling blocks in the realisation of universally accepted
fundamental human rights guarantees, most importantly of dignity,
equality and freedom.
The participants urged that the international community, including the
United Nations, should acquire adequate knowledge about the threats
posed to the independence of the judiciary and to the lawyers in Asia.
The participants further reiterated their concern, that today, the
issue is not adequately addressed regionally and internationally, and
called upon the states and all other international as well as regional
entities, having their influence in Asia, to develop bilateral
policies with Asian states where threats to judicial independence is
considered as a matter of utmost urgency.
The participants emphasised, that there is much to be done, by Asian
lawyers and judges, in order to promote their own concerns about
professional independence. The participants affirmed that more
discussions like the one held at Bangkok need to take place within
domestic jurisdictions. They urged, that to realise this, Asian
jurists should come together, and pursue the development of the
institution of justice as a common cause in Asia.
The participants reiterated that it is the duty of Asian jurists to
demand policy changes from their governments, so that states give
priority to the advancement of justice and to the development of
domestic institutions' capacities to deliver justice. The participants
are unanimously of the opinion that towards the above end, a network
of lawyers and judges - siting and/or retired - should be developed in
Asia. This network should lead the way to bring the discussion of
independence of judges and lawyers to the forefront.
As a matter of priority, this network should develop capacities to
assist lawyers and judges who face threats. Each case of threat to
professional freedom needs to be expeditiously documented and shared
with others within the country as well as internationally. With
adequate utilisation of modern communication facilities, such sharing
of information could be done without incurring exorbitant costs.
Towards this, lawyers must be trained to document the treats they
face, meticulously and with the greatest possible details.
The practice of such documentation and dissemination of information is
inadequate in Asia so far. The participants opined, that the quality
of the documentation and its widest possible dissemination seeking
interventions, whenever professional independence of either the
judiciary or that of the lawyers are under attack, could be a game
changer to the existing conditions dominated by fear and isolation in
Asia. Besides, practical steps should be developed to assist persons
facing threats, for instance, by ensuring protection of lawyers and
judges under threat by safe relocation, whenever necessary.
The participants agreed to take active part in the development of this
network for protection of independence of the judiciary and that of
the lawyers.