Commission 3 – Independence of Judiciary – Hanoi 2009

    Part of the Hanoi Congress – XVII Congress of IADL, June 2009


    • Protection of Judges and Lawyers
    • Access to Justice
    • Juvenile Justice
    • Democratic governance for the people



    (IADL XVIIth Congress, Hanoi)

    The Commission Presidium was composed of Justice Vijender Jain as Presidium Head, Mr. Akhtar Hussein, Judge Tran Van Do and Mr. Neri Javier Colmenares as Rapporteur.  This report is only a summary of the main points of the papers delivered and the oral interventions during the Commission deliberation. The Report’s discussion of cases of oppression and its interpretation of the various notions related to the subject of judicial independence are reflections of the ideas and opinions put forward by the participants although they may be similarly founded on the pro-people and pro-human rights standpoint of all the participants in this Congress.

    The Commission tackled concerns involving both the judiciary and lawyers  outlining the implications of a judiciary that lacks independence or whose independence is compromised either due to direct interference from extraneous political and economic forces or by the constraints and nature of the legal system, including the legal structures, in place.  Ideas on the factors necessary for ensuring such independence and the impact of attacks against lawyers and judges in the dispensation of justice were also vigorously discussed. The response of pro-people judges and lawyers to the constraints of a legal system defined and imposed by the ruling elite and imperialism was also a major focus of the Commission deliberation.

    The initial discussions centered on the implications of a biased or subservient judiciary, also called a politicised judiciary,  on the people and society.[1] The injustice may be committed on an individual as in the case of a black US soldier condemned by a US court martial for a personal letter  he wrote critical of  US aggression in 1896.[2] It may also destroy the lives of thousands as in the case of the Palestinian juveniles in Israeli occupied territories who  are subjected to harsh treatment that is sanctioned by a hostile judiciary fails to respect their due process rights.[3] A subservient judiciary may also impact on the political life of a nation as exemplified by the reversal of a 1959 Tokyo District court decision finding the deployment of US troops in Japan unconstitutional upon the overt intervention of the US Ambassador.[4] Due to the difficulty of ensuring independence of domestic courts major rights issues as exemplified by the comfort women and agent orange cases, there was a strong proposal from a presentor from Japan for an Asian Human Rights Court[5] which may serve as an additional forum for those who cannot get justice from their domestic courts. Another proposed support for the creation or strengthening of human rights commissions to serve as an alternative mechanism to judicial remedies for human rights violations considering that the independence of many courts, when dealing with human rights issues, have been severely compromised.[6]International tribunals are also vulnerable to the same interventions as domestic courts thereby reneging on their mandate to dispense justice without fear or favour and the cases involving Bashir, Hariri and even Saddam Hussein[7] were mentioned. [8]

    The need of promoting judicial independence, however, cannot just dwell on its deleterious effects on the rights and interest of the people but must be accompanied by a critical analysis of the factors that impact on this independence. Foremost among the factors mentioned pertains to the need for an appointment system that shields the judiciary from the influence of the appointing authority.[9]Although no definitive system has been forwarded, it was clear the issue of appointment and term of office bears significant influence on judicial independence.  The Commission agreed that the judiciary’s budget and training should be autonomous from any intervention from both the legislative and the executive branch.[10] Attacks on judges and lawyers definitely impact not only on the independence of the judiciary but also independent practice of the legal profession and the right of the people to unhampered access to judicial processes.[11] The protection of judges, lawyers and even their families is an important component of any action to promote judicial independence. Lawyers from many countries such as Colombia and Pakistan have been the subject of attacks and a Report by a fact finding mission supported by IADL showed how the killing of more than 40 lawyers and judges in the Philippines substantially hamper the dispensation of justice and promote impunity in the country reeling from a large number of extra judicial killings and enforced disappearances.[12]

    The threats to judicial independence and its capacity to render impartial justice need not, however, be limited to outside interference and influence on court proceedings.  Ignorance of judges and lawyers of the nature of certain rights may heavily restrict its capabilities to the protection of these rights as exemplified by its misapprehension of the rights of criminally accused juveniles such as those in Japan and Vietnam.[13] More than this, however, the independence of many judicial institutions in the world today are not only impinged upon but are actually rendered nugatory by the dominant legal system imposed by the ruling elite and neo colonial structures.[14] The recognition by progressive judges and lawyers of the need for “the rule of law” is a reality but they need to know on whose behalf the law was made.[15] The participants agree that judges and lawyers must interpret the law from the perspective of the oppressed and exploited and considering that a large percent of judicial decisions are no longer “cast iron law” but are rather mainly based on judicial discretion and interpretation of existing laws, there is room indeed for a progressive practice of the legal and judicial profession. [16]Even if all believe that progressive interpretation of laws  imposed by the ruling elite is a necessary reality, lawyers and judges must never lose sight of the need, not merely to interpret the law, but to change the very nature and standpoint of these laws and make these laws serve the interest of the people.[17] This was in fact the thesis of a paper on peoples’ lawyering”-that the three main functions of a progressive lawyer are mainly providing legal services to poor and oppressed, continuous advocacy and education of the people, and  a commitment to ensure that lawyers and their organizations should never be detached from the people or the peoples movement.[18]

    Ensuring an independent judiciary capable of dispensing justice entails a critical engagement of forces and factors from within and without the judiciary.  It is affected not merely by economic or political favors dispensed by interested parties but also by threats and attacks from the same.  Beyond these factors, there is a legal system that essentially limits judicial action and which must be met by a judicious interpretation of the law in favour of the people.  The task of ensuring the independence of the judiciary therefore is not merely confined to members of the legal profession, but rather by and through a constant engagement by the people as whole, and to which the IADL must contribute, to ensure that the justice system, not merely the judiciary, is free from the unjust intervention of those who seek to oppress and exploit the people.

    The Commission proposes that lawyers organizations from Asian countries should study the necessity, feasibility and implications of the creation of an Asian Human Rights Court.  Engagement with country human rights commissions is also recommended to ensure that they genuinely fulfil their mandate to protect, promote and defend human rights.

    The Commission also proposes that the IADL expand and strengthen its advocacy work on the attacks against judges and lawyers, conduct fact finding missions in the seriously affected countries and make representations with the UN Special Rapporteur on the Independence of Judges and Lawyers towards creating an effective response to the increasing attacks on members of the legal profession.

    [1] Discussed at length by Justice Jain, Mr. Hussein, Dr. Raghuvir Kadian

    [2] Discussed by Gil Boeringher of Australia

    [3] Discussed by Joanna Callewaert of Belgium

    [4] Discussed by Prof. Osamu Niikura of JALISA from a paper by Mr. Motto Hirayama.

    [5] Discussed by Mr. Jun Sasamoto of JALISA and the need for global standards in dealing with human rights by Mr. Shun Tanaka.

    [6] The need for accountability was stressed by Justice Amil Kumar and Mr. Zahedul Bari while  Prof. Nguyen van Huyen of Vietnam  asserted that judicial independence must be accompanied by transparency.

    [7] Although Saddam Hussein was technically sentenced by a domestic court foreign influence on the domestic proceedings was apparent.

    [8] The issue of international tribunals and politicised judiciary were discussed by Mr. Sabah Al-Mukhtar, Mr.  Hassan Jouny

    [9] This issue was a continuing thread in the Commission deliberations through the intervention of Mr. RS Cheema,

    [10] Discussed by TS Trong of Vietnam.  .

    [11] Discussed by Jo Dereymaeker, Justice Jain, Mr. Hussein as well as lawyers from Pakistan, India and Bngladesh. The issue of access to justice was also discussed by Ms. Manjit Kaur of India in relation to the need for stronger free legal aid, with the assertion that peoples’ access to justice impacts on the impartial and independent dispensation of justice by the judiciary.

    [12] Discussed at length by Jo Dereymaeker who participated in the Mission as representative of IADL.

    [13] This was discussed by Prof. Tran Van Do of Vietnam.

    [14] Judge Fred Ampuan of NUPL Philippines raised this issue, particularly the difficulty of judges in implementing a law which may be deemed anti-people.

    [15] Intervention from Mr. David Gespass of NLG USA.

    [16] Intervention by Pres. Jitendra Sharma of India.

    [17] Intervention of Neri Colmenares.

    [18] Discussed by Gil Boehringer.

    Download papers presented at Commission 3 (Hanoi 2009)