ASIA: Professional independence of judges and lawyers central to the protection and promotion of human rights, the rule of law and democracy in Asia
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.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.
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