global judicial dialogue
Judicial Guidelines: The Five Way Test
By the Hon. Mr. Justice Gerard
Winter High Court of
Justice
Gerard Winter was appointed from
It was a grey mid-winter day when he rang. The Chief Justice of Fiji was calling to ask if I would come and join their High Court.
The words of American author
James A. Michener – much loved for his syrupy
book that lead to the musical South Pacific – sprung
to mind as did his description of
Sure the country had its share of troubles. In recent history: three coups, a mutiny in the army, and for some time, a people divided by religion, race, class and tribal allegiances. However, I was an advocate of the rule of law and these were exactly the sorts of challenges to be embraced not ignored.
And so here I am 30 months later sitting on a boat in my best sulu powering back to the mainland where I will sit this afternoon in Lautoka, a sleepy seaside city famous for its sugar mill and rum.
Friends ask what has it been like?
That is not an easy question to answer, partly because the answers are still forming, but I do have some impressions.
Personally: relearning the joys of a simple life, the importance of family and the art of hospitality from a proud friendly people will, I hope, remain lifelong lessons.
Professionally, well, let’s just say that joining a bench once described by its Chief Justice as being characterized by an absence of collegiality, backbiting, envy, hidden agendas, hypocrisy and disloyalty that made Hamlet’s Denmark by comparison look like a holiday camp, has required diplomacy and a robust sense of humor.
This is a bench still challenged by the echoes of the last coup in May 2000 when now convicted traitor George Speight seized Parliament and took the one year old government of Prime Minister Mahendra Chaudhary hostage for 56 days. At that tragic time, the nation slipped into a lawless abyss of mob rule with chilling violence and menace as old scores were settled, largely by Fijians, against the castless descendants of Tamils, Nepalese, North Indians, Sikhs and Bengalis originally brought here by the British between 1879 and 1916 to work colonial sugar plantations.
Their indentures completed, these Indo-Fijians were left to become farmers, merchants, and citizens grafted onto a country that has never really wished them to remain.
In colonial times, no doubt with good intentions, London, wishing to avoid a repeat of the land loss suffered by the Maori in New Zealand, ensured that political supremacy and land ownership would remain with indigenous Fijians only. The country now has a multi-racial Constitution modeled on the International Covenant on Civil and Political Rights but the London legacy remains.
Amongst the fundamental rights that belong to every human being are those described in that section of the ICCPR which contains “Procedural Guarantees in Civil and Criminal Trials” Article 14.1 says relevantly:
“All persons shall be equal before the Courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent independent and impartial tribunal established by law.”
It is impossible to ensure the rule of law, upon which other human rights depend, without providing independent courts and tribunals to resolve in the language of the ICCPR, competently, independently and impartially, disputes both of a criminal and civil character.
In post–conflict settings,
national judicial, police and correction systems have
typically been stripped of the human, financial and
material resources necessary for their proper functioning. They
also lack legitimacy, having been transformed by conflict
and abuse into instruments of repression. Experience
has led many including the former High Representative
for
“In hindsight we should have put the establishment of rule of law first, for everything else depends on it; a functioning economy, a free and fair political system, the development of civil society and public confidence in police and courts.” (UN Secretary General; the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies. UN document S/2004/616. Page 27).
The rule of law utterly depends upon public confidence, belief and trust in judges. Mistrust and cynicism about judges degrades the rule of law down to the rule of power where judgments, no matter how well intentioned and drafted, are often interpreted as arbitrary and irrelevant.
Since 1972 most major judiciaries have adopted a Code of Conduct or Ethical Principles for the guidance of judges.
Notable examples of this include the statement of ethical principles for judges adopted in Canada in 1998, the European Charter on the Statute for Judges in the same year, the Restatement of Values of Judicial Life adopted by the Chief Justices conference of India 1999, the Guideline for Judges of South Africa issued in March 2000 and the Guide to Judicial Conduct published by the council of Chief Justices of Australia in June 2002.
In November 2002 a round table conference of seventeen Chief Justices held in the Peace Palace at the Hague adopted the Bangalore Principles of Judicial Conduct which are now widely accepted as defining the international standards for ethical conduct by members of the Judiciary.
A clear open and transparent statement of the ethical principles by which Judges will be bound is essential. Citizens, knowing their judges are bound to competent, independent and impartial conduct, will more readily respect the difficult decisions made by them to uphold the rule of law, especially in post-conflict states.
[1] Independence
Judges should exercise the judicial function independently on the basis of an assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect from any quarter or for any reason. A judge should be independent in relation to society in general and in relation to the particular parties to a dispute.
[2] Impartiality
Judges should ensure that their conduct both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judiciary. Judicial conduct must minimize occasions on which it might be necessary for recusal from hearing or deciding cases. Judges should not participate in any proceedings in which they are unable to decide the matter impartially.
[3] Integrity
Integrity is essential to the proper discharge of judicial duties. Justice must not merely be done but must be seen to be done. Accordingly, judges should ensure that their conduct reaffirms the public’s faith and confidence in the integrity of the judiciary.
[4] Propriety
A judge should freely and willingly accept personal restrictions that might be viewed as burdensome by the ordinary citizen. A judge like any other citizen is entitled to freedom of expression, belief, association and assembly but in exercising those rights and freedoms a judicial officer should always maintain and preserve the dignity of the judicial office and the impartiality and independence of the judiciary.
[5] Equality
A judge should be aware of and understand diversity in society and differences arising from various sources, including but not limited to race, color, sex, religion, culture and traditions, caste, disability, age, marital status, sexual orientation, social and economic status. A judge should appreciate equality as respect across difference and must carry out judicial duties with appropriate consideration for all persons, parties, witnesses, lawyers, staff and judicial colleagues who use the court.
[6] Competence and Diligence
Competence and diligence are crucial to the due performance of judicial office. Judges need to take reasonable steps to maintain and enhance their legal knowledge, judicial skills and personal qualities necessary for the proper performance of judgment. Patience, dignity and courtesy should mark the conduct of a judge in and out of court.
Conclusion
Judge Mihm in last month’s dialogue talked of the precious ingredients of the rule of law as transparency, predictability and judicial independence. How right he was. I would add to these aspirations a simple five way test. In all things am I: Independent? Impartial? Acting with integrity? Competant? And diligenent while respecting the difference in others? If the answer is yes, then our judgments and decisions will affirm the rule of law.
And
so it is, 30 months later, as the echoes of the last coup
fade and these principles now guide Fijian Jurisprudence,
Hamlet’s court returns to its proper place on the bookshelf
and I will answer my friends when they ask: What was it
like to be a Judge in
Ni
sa moce, (farewell)
Bula Vinaka!! (best wishes)
You can contact Judge Winter at fijiwinter@yahoo.co.nz
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