Lawyers’ contributions to securing judicial independence
Professor Andrew Le Sueur, University of Essex, United Kingdom
This note reports on work-in-progress for a study of the role of lawyers in securing judicial independence. It introduces the study, provides a draft outline of the research questions and methods, and reports on some preliminary findings. Suggestions for developing the study are sought from colleagues.
A. Introduction — putting lawyers into the picture
Since the 1980s, there has been a flood of initiatives designed to articulate and achieve better implementation of the human rights and constitutional principle of judicial independence (JI). On the international level, the United Nations, the Council of Europe, and the Commonwealth of Nations (among other organisations) have sponsored work. Activities have taken place at national level in numerous countries, including constitutional redesign and more detailed operational measures. International bodies, governments, judges, academic researchers, and civil society organisations (national and international) have all contributed to the tasks. While legal scholars have been more concerned with the normative questions relating to JI, it has been left largely to political scientists to address the empirical question whether these activities can be demonstrated to improve de facto adherence to JI.[1]
What almost everybody has neglected is the contribution of lawyers — as individual professionals and collectively through professional associations — in efforts to define, protect and improve compliance with principles of JI. The focus has instead been on state actors, typically the triangle of judicial, executive, and government branches of government. Yet lawyers in various ways exercise power in relation to JI. Individual lawyers are key players in trial processes: as advocates, they share courtrooms with judges and have day-to-day interactions with court administrations. Organised legal professions, though associations, may influence judicial appointments and appraisals; they may contribute to public discourse; and regulate behaviour of their members.
This study seeks fill the gaps in our understanding of the role of lawyers in relation to JI by providing an analytical description of their activities using four sources. First, the obligations of individual practising lawyers are assessed across a sample of legal systems to assess what formal provision is made in relation to duties related to JI; this includes professional ethics and conduct codes and undertakings or oaths made on entry to the legal profession (see Part B). Second, the study examines the JI-related activities of lawyers professional associations in several national systems (see Part C). Third (in Part D), attention is turned to the international level, examining the publications and activities of international lawyers organisations. Fourth, several of the official and non-official codes of principles about JI that have been developed internationally are analysed to see what is said about lawyers’ roles and responsibilities (see Part E).
B. Individual lawyers in national legal systems
This section focuses on lawyers as individual professionals. What if any formal undertakings do lawyers make in relation to JI when admitted to the legal profession? What responsibilities are placed on lawyers by codes of conduct and professional ethics?
A sample of jurisdictions needs to be identified.
C. National lawyers associations
This section moves on from individual professionals to explore the organised profession: what national lawyers associations — typically known (in English) as bar councils, bar associations, and law societies — say and do about JI.
This is done in two ways. First, the websites and online publications of national lawyers associations in a sample of countries (see Table 1) are surveyed for the presence or absence of a various possible observable outputs and activities that may relate to JI (see Table 2). Second, [three or four case studies] on how lawyers associations respond to national events are examined in more detail (see Table 3).
National lawyers associations are non-state actors that exercise power. Sometimes a national lawyers association may act as a corporate entity (e.g. in adopting rules of professional conduct); on other occasions power may be exercised by a nominated member or representative (e.g. when sitting on a judicial appointments commission). Through national lawyers associations, lawyers are able to mobilise the resources to enable them to act.
The concept of “power” is notoriously contested in political science; for present purposes, a framework of three dimensions of power will be used.[2] National lawyers associations, in ways relevant to JI, may be seen as having: (a) “decisional power”, the capacity to influence decision-making; (b) “discursive power”, the capacity to frame and reframe pubic discourse; and (c) “regulatory power”, the capacity to make and remake rules.
Also of importance, but less easily observed, is the the idea that a form of power is keeping issues hidden, off the political agenda.[3] A hypothetical example would be a bar council deciding (tacitly or after deliberation) not to press for constitutional change that might improve respect for JI in a legal system.
Table 1: Sample of national lawyers associations
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American Bar Association (ABA)
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Canadian Bar Association
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Jamaican Bar Association (JBA)
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Hong Kong Bar Association
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Pakistan Bar Association
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Bar Council of England and Wales
Table 2: Types of lawyer association power relating to JI
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DECISIONAL POWER
Judicial appointments: membership of judicial selection commissions
Judicial appointments: consultees on nominees for appointment
Judicial appraisal: organisation/participation in routine reporting systems
Judicial appraisal: ad hoc complaints about individual judges
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DISCURSIVE POWER
Initiation/participation in national debates about judiciary/judicial reform
Publications aimed at legal practitioners (e.g. newsletters, magazines)
Public legal education and information activities
Public statements censuring/supporting individual judges in time of crisis
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REGULATORY POWER
Publication and enforcement of lawyers professional ethics and conduct codes referring expressly to JI
Publication and enforcement of lawyers professional ethics and conduct relating implicitly to aspects of JI
Requiring and monitoring of continuing professional development (CPD)
Involvement in approving law schools’ curricula.
Table 3: Lawyers associations’ responses to national events
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Response of lawyers to the suspension and reinstatement of Chief Justice of Pakistan in 2007.
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Response of lawyers to proposals for reform of judicial appointments, abolition of office of Lord Chancellor, and creation of a supreme court in the United Kingdom in 2003-2005.
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Response of lawyers to criticism of judiciary in Hong Kong by former justice minister Leung Oi-sie in 2012.
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Response of lawyers to the impeachment of Shirani Bandaranayake, Chief Justice of Sri Lanka, in 2013.
D. International lawyers associations
Since the 1980s many international organisations and groups have worked on project designed to improve JI. This part of the study seeks to build a picture of what international lawyers organisations have said and done in relation to JI by looking at a sample of six associations (see Tables 4 and 5).
Table 4: International lawyers associations
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International Bar Association (IBA)
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Commonwealth Lawyers Association (CLA)
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European Criminal Bar Association (ECBA)
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International Association of Lawyers (UIA)
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International Association of Democratic Lawyers (IADL)
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International Criminal Defence Attorneys Association (ICDAA)
Table 5: overview of international lawyers organisations
Organisation JI in short mission statement? JI in constitution? JI evident in other publications?
IBA No No Yes (relating to rule of law work and implicitly in anti-corruption guidelines)
CLA No Not available. Yes
ECBA No No No
UIA No No Yes
IADL Yes Yes Yes
ICDAA
E. International codification of JI
A flurry of activity at international level — by official bodies and civil society organisations — over the past 30 years has led to publication of codified statements of the basic norms on judicial independence. This section will analyse the content of these codes to identify what is said about lawyers’ roles and responsibilities relating to JI.
1) United Nations:
In 1985, the United Nations adopted a resolution entitled Basic Principles on the Independence of the Judiciary.[4] Article 1 provides “It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary” (emphasis added, for reasons explained below).
UN Basic Principles on the Role of Lawyers — focus on protection of independence of lawyers.
2) Council of Europe
In 1994, the Council of Europe Committee of Ministers adopted Recommendation No. R(94)12 on the independence, efficiency and role of judges replaced in 2010 with Recommendation CM/Rec (2010)12.[5]
Work of the Venice Commission on Democracy through the Rule of Law.
3) Commonwealth
The Commonwealth (“Latimer House”) Principles on the Three Branches of Government, applicable to the 53 states of the Commonwealth of Nations, was adopted in 1998.[6] Under the heading “The role of non-judiciary and non-parliamentary institutions” provides that “An independent, organised legal profession is an essential com pendent of the protection of the the rule of law”.
4) Civil soviety organisations
The New Delhi Code of Minimum Standards of Judicial Independence, adopted by the International Bar Association in 1982, which (typical of the codes) focuses on autonomy of the judiciary vis-a-vis the executive and legislature.[7]
In Montreal in 1983, a meeting of scholars, judges and lawyers adopted a Declaration on The Independence of Justice at the First World Conference on the Independence of Justice in 1983.[8]
Starting in 2000, the Judicial Group on Strengthening Judicial Integrity (later renamed the Judicial Integrity Group or JIG), an international group of senior judges,[9] drafted the Bangalore Principles of Judicial Conduct. These focus on the ethical conduct expected of members of the judiciary. The Principles were adopted by the United Nations Economic and Social Council (ECOSOC) in 2006 and further work has included the publication of a 175-page “Commentary” on the principles, designed for use in judicial training programmes[10] and a statement of implementation measures in 2010 (divided into two parts, one on “Responsibilities of the Judiciary”, the other “Responsibilities of the State”).[11]
The Mount Scopus Revised International Standards of Judicial Independence, first approved in 2008 provides a synthesis of the many other statements of principle.[12]
5) Preliminary Findings
Read together the codifications provide a very thin account of norms governing lawyers and JI. We learn the following.
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There is a responsibility for public education. Lawyers, individually and through professional associations, have a duty to “to educate the members of the public about the principles of the rule of law, the importance of the independence of the judiciary and of the legal profession and to inform them about their rights and duties, and the relevant and available remedies”.[13]
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“It is the duty of a lawyer to show proper respect towards the judiciary”.[14]
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A judge “must ordinarily avoid being transported by … lawyers”, from which can be inferred a responsibility on the part of lawyers not to offer lifts to judges.[15] The Commentary goes on to provide detailed guidance on the boundaries of acceptable contact with lawyers in a variety of different social and professional contexts, all of which is essentially advice on avoiding reasonable perceptions of bias.
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“A lawyers shall at all times maintain the highest standards of honesty, integrity and fairness towards … the court”.[16]
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Bar associations should adopt strategies, including education programmes, adjustment of discipline and ethics codes, on combatting corruption.
F. Findings, discussion and next steps
This study seeks to “triangulate” information about the activities of lawyers relating to JI from a range of different sources, nationally and internationally. Early findings suggest that there is a significant quantity of activity, most of which has not been “captured” in the codifications of norms generated in recent years.
Part of the conclusions of the study will be to formulate a possible amendment to the the Mount Scopus Standards to include reference to lawyers and lawyers associations. What might the provision include? How detailed should it be?
LAWYERS AND THE JUDICIARY
1) Lawyers have an individual professional responsibility to uphold the independence of the judiciary.
2) Lawyers professional associations shall have a duty to defend the independence of the judiciary.
Footnotes:
[1] See e.g. Bernd Hayo and Stefan Voigt “Mapping Constitutionally Safeguarded Judicial Independence — a Global Survey” (2014) 11(1) Journal of Empirical Legal Studies 159; J Ríos-Figueroa and J. Staton, “An Evaluation of Cross-National Measures of Judicial Independence” (2012) The Journal of Law, Economics and Organization 1.
[2] See B Arts, “Non-state actors in global governance: Three faces of power” Reprints of Max Planck Institute for Research on Collective Goods (2003).
[3] S Lukes, Power: a Radical View (2nd edn, 2005).
[4] < http://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx> Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan in 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985
[6] < http://www.cmja.org/downloads/latimerhouse/commprinthreearms.pdf>
[7] Text available at < http://www.jiwp.org/#!new-delhi-declaration/c134r>
[8] See further Shimon Shetreet and Jules Deschenes, Judicial Independence: The Contemporary Debate (1985 Martinus Nijhoff).
[9] < http://www.judicialintegritygroup.org/index.php/jig-group/jig-history>
[10] UN Office on Drugs and Crime, Commentary on the Bangalore Principles of Judicial Conduct (2007). < http://www.unodc.org/documents/corruption/publications_unodc_commentary-e.pdf>
[11] < http://www.judicialintegritygroup.org/resources/documents/BP_Implementation%20Measures_Engl.pdf>
[12] < http://www.jiwp.org/#!mt-scopus-standards/c14de>
[13] Montreal Declaration on the Independence of Justice (1983) art 6.3.
[14]Montreal Declaration on the Independence of Justice (1983) art 3.15.
[15] UN Office on Drugs and Crime, Commentary on the Bangalore Principles of Judicial Conduct (2007) para 113 (Inappropriate contacts).
[16] IBA, International Principles on Conduct for the Legal Profession (2011) para 2.