The Rule of Law and Human Rights
 



Part I:

Chapter 1:
Chapter 2:
Chapter 3:
Chapter 4: 
Chapter 5:
Chapter 6:
Chapter 7:
Chapter 8:
Chapter 9:

Part II









 


 Introduction

 Principles of the Rule of Law

 Essential Requirements of a Society under the Rule of Law
 The Legislature and the Rule of Law
 The Executive and the Rule of Law
 The Criminal Process and the Rule of Law
 The Judiciary and the Rule of Law
 The Legal Profession and the Rule of Law
 The Role of Legal Education in a Changing Society
 Economic and Social Development
 The Rule of Law and the Layman

 Guide to Human Rights Provisions

 Introduction
 Universal Declaration of Human Rights
 Act of Athens
 Declaration of Delhi
 Law of Lagos
 Resolution of Rio
 Declaration of Bangkok
 Declaration of Colombo
 Resolutions adopted at Congresses and Conventions of ICJ
 


Chapter 5:
The Judiciary and the Rule of Law
 


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.


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