I. The judiciary under the Rule of Law
1. An independent
judiciary is an indispensable requisite of a free society under the Rule
of Law. Such independence implies freedom from interference by the
executive or legislature with the exercise of the judicial function, but
does not mean that the judge is entitled to act in an arbitrary manner.
His duty is to interpret the law and the fundamental principles and
assumptions that underlie it. It is implicit in the concept of
independence set out in the present paragraph that provision should be
made for the adequate remuneration of the judiciary and that a judge's
right to the remuneration settled for his office should not during his
term of office be altered to his disadvantage.
2. There are in
different countries varying ways in which the judiciary are appointed,
re-appointed (where re-appointment arises) and promoted, involving the
legislature, executive, the judiciary itself, in some countries the
representatives of the practicing legal profession, or a combination of
two or more of these bodies. The selection of judges by election and
particularly by re-election, as in some countries, presents special
risks to the independence of the judiciary which are more likely to be
avoided only where tradition has circumscribed by prior agreement the
list of candidates and has limited political controversy. There are also
potential dangers in exclusive appointment by the legislature,
executive, or judiciary, and where there is on the whole general
satisfaction with the calibre and independence of judges it will be
found that either in law or in practice there is some degree of
co-operation (or at least consultation) between the judiciary and the
authority actually making the appointment.
3. The principle
of irremovability of the judiciary, and their security of tenure until
death or until a retiring age fixed by statute is reached, is an
important safeguard of the Rule of Law. Although it is not impossible
for a judge appointed for a fixed term to assert his independence,
particularly if he is seeking re-appointment, he is subject to greater
difficulties and pressure than a judge who enjoys security of tenure for
his working life.
4. The
reconciliation of the principle of irremovability of the judiciary with
the possibility of removal in exceptional circumstances necessitates
that the grounds for removal should be before a body of judicial
character assuring at least the same safeguards to the judge as would be
accorded to an accused person in a criminal trial.
5. The
considerations set out in the preceding paragraph should apply to: (1)
the ordinary civil and criminal courts; (2) administrative courts or
constitutional courts, not being subordinate to the ordinary courts. The
members of administrative tribunals, whether professional lawyers or
laymen, as well as laymen exercising other judicial functions (juries,
assessors, justices of the peace, etc.) should only be appointed and
removable in accordance with the spirit of these considerations, in so
far as they are applicable to their particular positions. All such
persons have in any event the same duty of independence in the
performance of their judicial function.
6. It must be
recognized that the legislature has responsibility for fixing the
general framework and laying down the principles of organization of
judicial business and that, subject to the limitations on delegations of
legislative power which have been dealt with else- where, it may
delegate part of this responsibility to the executive.
However, the
exercise of such responsibility by the legislature including any
delegation to the executive should not be employed as an indirect method
of violating the independence of the judiciary in the exercise of its
judicial functions.
II The
responsibility of the judiciary for the protection of the rights of the
individual in society (Conference of Lagos, 1962, Committee III, cl.
1-5)
1. In a free
society practicing the Rule of Law, it is essential that the absolute
independence of the judiciary be guaranteed. Members of the legal
profession in any country have, over and above their ordinary duties as
citizens, a special duty to seek ways and means of securing in their own
country the maximum degree of independence for the judiciary.
2. It is
recognized that in different countries there are different ways of
appointing, promoting and removing judges by means of action taken by
the executive and legislative powers. It is not recommended that these
powers should be abrogated where they have been universally accepted
over a long period as working well.
3. In respect of
any country in which the methods of appointing, promoting and removing
judges are not yet fully settled, or do not ensure the independence of
the judiciary, it is recommended:
(a) that these powers should not be put
into the hands of the executive or the legislature, but should
be entrusted exclusively to an independent organ such as the Judicial
Service Commission of Nigeria or the Conseil superieur de la
magistrature in the African French-speaking countries;
(b) that in any country in which the
independence of the judiciary is not already fully secured in accordance
with these principles, they should be implemented immediately in respect
of all judges, especially those having criminal jurisdiction.
4. It is
recommended that all customary, traditional or local law should be
administered by the ordinary courts of the land, and emphasized that for
so long as that law is administered by special courts, all the
principles enunciated here and at New Delhi, for safe-guarding the Rule
of Law, apply to those courts.
5. The practice
whereby in certain territories judicial powers, especially in criminal
matters, are exercised by persons who have no adequate legal training or
experience, or who as administrative officers are subject to the control
of the executive, is one which falls short of the Rule of Law.