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Contributions from
the Column
Focus
Lost in transition – the difficulties of nation building
“Belonging to a nation is not opposed to globalisation”
Latin America: Aiming for social cohesion
An ethics code for judges
Sri Lanka: The glue that keeps people apart
04/2005
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An ethics code for judges
Throughout history, human societies have needed judges and linked that status to a special sense of responsibility. This insight in itself, however, does not guarantee the integrity of the judiciary nor the people’s trust in it, as is evident in Latin America. Codified ethical standards could help and the United Nations’ “Bangalore Principles of Judicial Conduct” provide a basis.
[ By Jan Woischnik ]
“¡Que se vayan todos! They should all get lost!” This phrase was chanted for weeks at demonstrations during the Argentinian crisis in 2001/2002. The slogan not only referred to the government or “the” politicians in general, but also to the judiciary, and above all, the judges themselves. Masses of people gathered time and again in front of the Corte Suprema de Justicia in Buenos Aires to call for the resignation of the highest ranking federal judges. At the time, results from an opinion poll on the citizens’ confidence in the judiciary showed the extent of Argentina’s institutional crisis, which immediately followed the economic collapse. Approximately 95 percent had lost all confidence in the legal system, whereas only five percent answered positively. The situation has not changed much since. The dilemma, however, is that the judiciary depends on the trust of the population.
Sadly, things are not only rather similar in most of Latin America – but also in many other developing or transition countries. However, citizens rarely express their distrust and dissatisfaction as clearly as Argentinians did three years ago.
Reasons for distrust
There are many reasons for the lack of trust. Often, the selection even of junior judges is not based on objectivity and a focus on job performance. It is no secret that personal contacts can help in obtaining a post as a judge in many parts of Latin America. A renowned family name can also be a crucial advantage. For this reason, several countries – including Argentina, Bolivia, Paraguay, Peru and El Salvador – have established so called judicial councils (Consejos de la Magistratura) in recent years. These councils assess candidates according to reasonably objective criteria such as examination grades, professional experience or lists of publications and then draw up ranking lists for the appointment of vacant judicial posts. In most cases, however, they only have a right of proposal. The actual appointment takes place later, and, depending on the country, is carried out by the supreme court, the senate or the government. Normally at that stage, it hardly matters anymore how candidates scored on the initial list.
The general public keeps a particularly close eye on the appointment of the supreme court justices. Argentina is an example of an especially counterproductive, trust-damaging line of action. After coming into office in mid-2003, President Néstor Kirchner continued in this tradition by unwaveringly pursuing the dismissal of until today four judges who had guaranteed the government of his predecessor, Carlos Menem, a reliable “automatic supreme court majority” in the 1990s. In fact, public hearings and consultations were introduced for making the new appointments. But in the end, Kirchner resorted to similar methods as his predecessor and thus blew the chance of a true new beginning. While the formal expertise of the body has indeed increased significantly, it remains to be seen whether an “automatic majority” has formed once again – and whether the new judges will gain, in addition to the trust of the President, also the trust of the citizenry.
The perception of how judges perform in office, however, is the most important factor for the judiciary’s reputation and matters more than their selection procedures. Many Latin Americans deplore wide-spread, habitual negligence. The wheels of justice turn very slowly. Often, even judges do not appreciate the competence of their peers within the same jurisdiction. As a result, there is hardly any social monitoring of efficiency and job performance. Extremely bureaucratic, written procedures, which are typical of colonial traditions, and inadequate administration add to the problem of even simple cases dragging on for years or even decades. Nonetheless, judges in most countries of the region are well paid and enjoy above average incomes. Many citizens consider this an intolerable contradiction.
The widespread practice of delegation further harms the reputation of the judges. Rather than dealing with cases themselves, as the law would prescribe, justices only too often leave the job to junior staff. All they do themselves is sign the final rulings. Another widespread problem is the appearance of judges in the media. Disproportionately far-reaching or only maladroit statements on pending proceedings stir up speculation about outcomes, put the judges under pressure to succeed and give rise to doubts concerning their objectivity.
Rampant corruption, however, is the most destructive of the fundamental evils. It is widespread in the judicial machinery of numerous developing and transition countries. In the eyes of many citizens, “the” judges are generally considered corruptible. Of course, the so accused disagree and stress that corruption is the exception within their ranks. The truth may lie somewhere in the middle – but the image of the judicial branch of government is deeply affected even if only a few cases of corruption come to light.
A far-reaching ethical reform of the judiciary is therefore urgently needed in many countries. Every state with a liberal democratic constitution needs an efficient, transparent and independent third power. The judiciary can only serve its crucial function if the judges do justice to their role, above and beyond all formally legal requirements. They must fulfil their duty impartially and with absolute integrity. The question, therefore, is whether general requirements for a judicial professional ethos should be spelled out explicitly and whether ethical standards of conduct for the judiciary should be codified.
International standards
The international community is positive about codifying such standards. Back in 1985, the United Nations (UN) drafted the first universal – if very general – standards of conduct for the judiciary under the title “Basic Principles on the Independence of the Judiciary”. 15 years later, the UN established a working party of chief justices from different countries. In 2002, their efforts resulted in guidelines named “Bangalore Principles of Judicial Conduct” after the location of their first meeting.
According to the preamble, these principles “are intended to establish standards for ethical conduct of judges”. The document presents six central ethical values: independence, impartiality, integrity, propriety, equality and competence along with diligence. It defines their meaning and elaborates in great detail on what kind of conduct is to be expected in concrete terms of the persons concerned in order to put the respective value into practice. 16 instructions are given under “propriety” alone, including whether and to what extent judges may accept gifts, hold public lectures, be a member of a professional association or maintain private contact with lawyers.
At the regional level, the introduction of ethical standards is also spurred on in many different ways. In the USA, Codes of Conduct were issued at the states level back in the early 20th century, followed by a Federal Judicial Code in 1973. In Europe, the European Council took on a leadership role and expressed a first recommendation to its member states on the independence, the performance and the role of judges in 1994. Based upon this, the “European Charter on the Statute for Judges” was issued in 1998. This charter contains a catalogue of regulations which aim at ensuring the competence, independence and impartiality that individuals legitimately expect of law courts and judges entrusted with protecting their rights. However, this document is not a true code of conduct for the judiciary and, in this respect, symptomatic of the reserved stance towards the codification of ethical standards still prevalent in the European judiciary.
While the Bangalore Principles are now used as a model in many countries in Latin America, Africa and Asia, the European associations of judges take a more sceptical view. According to them, the Bangalore Principle too widely restrict judges’ civil rights and too strictly regulate their private lives. European judges also oppose the idea that breaches of ethical rules could possibly be severely punished. There is a cultural-psychological background to such reservations. The Bangalore Principles are strongly inspired by Common Law thinking in the Anglo-Saxon tradition, even though a considerable number of judges from Continental Europe, the countries of which normally apply Civil Law, participated in drafting the rules.
The interest in judicial professional ethics has also been aroused in the crisis-prone countries of Latin America. A true regional code of conduct does not exist yet, but the Statute of Iberoamerican Judges (Estatuto del Juez Iberoamericano) of 2001 does at least contain a separate chapter on judicial ethics. Some countries, however, have tackled the issue in concrete terms at the national level. Last August in Mexico, a federal code of judicial ethics was adopted. Prior to this, Costa Rica (2000), Guatemala (2001) and Panama (2002) had introduced similar sets of rules and regulations in Central America. In South America, this applies to Chile (2003), Venezuela (2003), and Peru (2004) as well as various Argentinian provinces. Similar reforms are currently being discussed in Paraguay.
Legitimised by the constitution
This is a welcome development that donor countries should actively support. In strictly legal terms, of course, judiciaries do not derive their legitimacy from the approval of the general public, but from the constitutions of their countries. In practice, however, any court system becomes farcical once the citizens lose faith in it, despise its judges and resort to other means to enforce their rights. If judges have lost authority and personal credibility through unethical conduct, they will hardly be able to convince the citizens of the accuracy of any sentences they pass.
Once a judiciary gives itself standards of conduct and makes them available to the public, this generally signifies an important trust-forming measure that spells out in black and white what behaviour citizens may expect of their judges. Such formulated standards can compel the judges to behave in a disciplined way and to deal with the topic in a conscious and honest manner. Over and above this, such codified standards can help the judges to choose the appropriate form of conduct in cases of personal doubt which go beyond the purely professional, judicial arena. This applies particularly in countries where no century-old tradition defines as a matter of course what is fitting for a “good judge” and what is not.
Independence of the judiciary
Codified ethical standards, which guide the professional conduct of judges, do not threaten judicial independence as long as they are passed by the judiciary itself. Rather, such principles contribute to the protection and consolidation of independence, in the sense that judges, in the discharge of their office, are exclusively subject to the law and are bound only by it. Judges have to be able to decide without being under the influence of other state authorities. But that only serves its purpose if judges actually decide with integrity and without prejudice, as apparent guardians of public trust. Codes of conduct in the form of parliamentary laws, on the other hand, are irreconcilable with the principle of judicial independence because they do not conform to the separation of powers.
Codes on judicial ethics should, moreover, contain sanctions. Rules which are left up to the addressees themselves to implement are at risk of staying meaningless. In the Latin American context, people’s confidence in the third branch of government could be weakened even further if precisely those who decide on the rights of others are afraid of issuing legally binding rules of conduct for themselves, the compliance of which can be monitored and sanctioned. However, an ethical code with sanctions should not just contain vague principles. Rather, the way a judge has to behave in individual cases must emerge clearly from the code.
The Bangalore Principles can be used as a model, which not only names ethical values but also describes the appropriate conduct in each case. However, it should be noted that breaches of the ethical standards may not be sanctioned from the outside but exclusively by committees within the judiciary. Any other solution would indeed infringe upon the independence of the judiciary.
In terms of development policy, educational measures for the dissemination and fixing of a fundamental ethics attitude in the judiciary are expedient. The Konrad Adenauer Foundation supports the necessary reform process of the judiciary in Latin America with dialogue sessions which aim at an ethical sensitisation of the judges through self reflection.
Dr. Jan Woischnik
is a lawyer and runs the Konrad Adenauer Foundation’s South American programme on the rule of law, based in Montevideo. He is also the foundation’s national representative in Uruguay.
ius@kasuy.org
Website:
The Bangalore Principles on the web:
http://www.unodc.org/pdf/crime/corruption/judicial_group/
Bangalore_principles.pdf
The website of Konrad Adenauer Foundation’s rule of law programme (Spanish and German):
http://www.kas.de/proj/home/home/13/4
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