Volume 28, No.

2, 2002 articles
26. In New Zealand 26 per cent in August 1999; in Australia 24.1 per cent in 1989. See
Catley, above no 20 at 29, 31.
27. H Clark cited "In Search of a Nation's Soul", Time, 14 August 2000, 30 at 31. See
also Australian Financial Review, 25 May 2000, 19.
28. Catley, above n 10, 34.
29. D Headon and J Williams, Makers of Miracles — the Cast of the Federation Story,
Melb Uni Press, 2000.

Developing a Concept of Judicial

Accountability — The Judicial Integrity
Group and The Bangalore Principles of
Judicial Conduct
By Dr Nihal Jayawickrama1

It was Edmund Burke who observed that "All persons possessing a portion of
power ought to be strongly and awfully impressed with an idea that they act in
trust and that they are to account for their conduct in that trust". Power is given
on trust. In a society based on the Rule of Law and democratic principles of
governance, every power holder is, in the final analysis, accountable to the
people. It is the people who are the source of power, and through the national
constitution they delegate that power to different organs. The executive is, in
many parliamentary democracies, accountable to the legislature, in that it may
hold office only for as long as it enjoys the confidence of the legislature. The
legislature, in turn, is accountable to the electorate through periodic elections.
Both branches of government are, therefore, accountable to that source of all
power: the sovereign people. A judge, it is said, is accountable only to the law
and to the judge's conscience. This is simply another way of expressing the
essential character of the judicial function. It is, as Justice Michael Kirby has
observed, an aphorism that may hide "a multitude of sins"; it leaves untouched
"the rude judge, the slow judge, the ignorant judge, the prejudiced judge, the
sleeping judge, the absentee judge, and the eccentric judge".2 The judiciary is
entrusted by the people with the exercise of judicial power and, individually and
collectively, the judiciary ought to account to the people for the due performance
of the functions vested in it. But how does a community hold the judiciary
accountable without, at the same time, compromising its independence? How
does one achieve the right balance between autonomy in decision-making and
independence from external forces on the one hand, and accountability to the
community on the other?
Conventional wisdom requires that the independence of the judiciary be
secured. Accordingly, the emphasis, both at international and national levels, is
on securing and strengthening the independence of the judiciary, by such
measures as security of tenure, non-removability except for proved misbehaviour

1091
articles Commonwealth Law Bulletin
or incapacity, non-reduction of salaries, and immunity from being sued. In 1985,
the United Nations responded by adopting the Basic Principles on the
Independence of the Judiciary, recognising the importance of enabling a judge
to be free to decide matters before him or her without any improper influences,
inducements or pressures, direct or indirect, from any quarter or for whatever
reason. Judicial independence, which is thus secured, is not a privilege enjoyed
by judges; it is a privilege of the people, for the protection of the people.
Judicial independence is essential because it is the judiciary that stands between
the government and the people, reviewing actions taken by the government and
public officials, and indeed even the legislature, to determine whether or not
they comply with the standards laid down in the constitution and with the laws
enacted by the legislature. It is the judiciary that stands between the individual
and the enormous power and wealth and resources of the corporate sector, which
is increasingly becoming the primary employer and producer of national wealth.
But how real is this privilege? How adequate is this protection? These questions
need to be asked because evidence is steadily and increasingly surfacing that in
many countries, across many continents, the people are losing confidence in their
judiciaries. They are dissatisfied with the cost of justice, with the delays, and with
the cumbersome and daunting procedures involved in going to court, and they are
frustrated by the failure of the authorities to address these issues. Many see these
as indicators of judicial systems in a perpetual state of crisis. They also see them
as indicators of the prevalence of corruption. Even if these public perceptions are
incorrect or reflect an exaggerated picture, blown-up out of proportion to the real
thing, the judiciary cannot afford to ignore public perceptions. For example, if the
public wrongly believes that the judiciary is corrupt, the reasons for that mistaken
belief, and what contributes to such negative perceptions, need to be identified and
remedied. The principal responsibility falls on the judiciary to address this
problem because, in the ultimate analysis, the real source of judicial power, and
the real basis for its exercise, is public acceptance of the moral authority and
integrity of the judiciary.
It was against this background that, in October 1999, a pilot workshop on
Strengthening Judicial Integrity was convened during the 9th International Anti-
Corruption Conference in Durban. It was attended by over 160 participants,
including judges, lawyers, legal academics, justice ministry officials, members of
parliament, human rights activists, and civil society representatives. One message
that came through clearly from that workshop was the need to formulate and
implement a concept of judicial accountability without eroding judicial
independence. In the same month at their meeting also held in Durban, the
Commonwealth Heads of Government approved a Framework for Commonwealth
Principles on Promoting Good Governance and Combating Corruption, based on
the report of an expert group appointed by the Commonwealth Secretary-General
which, in respect of the Judiciary, had recognised the need for principles of
accountability and had recommended the formulation of a national strategy to
restore its integrity and efficiency. In February 2000, the Centre for the
Independence of Judges and Lawyers (CIJL) convened a 16-member expert group
drawn from 14 countries to address the issue of judicial corruption. At the
conclusion of a two-day meeting held in Geneva, the expert group agreed on

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The Policy Framework for Preventing and Eliminating Corruption and Ensuring
the Impartiality of the Judicial System. One of the principal elements of this
policy framework was an enforceable statement of judicial ethics.

The Judicial Integrity Group

In early 2000, eight Chief Justices responded positively to a suggestion that a
small "leadership group" be established to address the issue of judicial
accountability. Thereupon, the United Nations Centre for International Crime
Prevention invited these Chief Justices from eight countries in Asia and Africa,
which applied a multitude of different laws but shared a common judicial
tradition, to a preparatory meeting held in conjunction with the 10th United
Nations Congress on the Prevention of Crime and the Treatment of Offenders.
The objective of the exercise was:
(a) to formulate a concept of judicial accountability which will be of
practical effect and have the potential to impact positively on the
standard of judicial conduct and raise the level of public confidence in
the Rule of Law;
(b) to design tools and mechanisms which are capable of being utilised
by the national judiciary to strengthen the integrity of the judicial
system;
(c) to identify, and assist in the implementation of, "best practice" measures
of judicial reform which are demonstrably effective in eliminating
corruption within judicial systems and providing greater, more
expeditious, and less expensive access to justice;
and to do so within the constitutional guarantees of judicial independence.
The Judicial Group on Strengthening Judicial Integrity (the Judicial Integrity
Group), comprising the Chief Justices of Nigeria, Uganda, Tanzania, South
Africa, Sri Lanka, Karnataka State in India, Bangladesh and Nepal, met in
Vienna in April 2000 under the chairmanship of Judge Weeramantry, Vice-
President of the International Court of Justice, with Justice Michael Kirby of the
High Court of Australia as Rapporteur. The UN Special Rapporteur on the
Independence of Judges and Lawyers, Dato' Param Cumaraswamy, was present
as an observer. The Chief Justices agreed that, consistent with the principle of
judicial independence, (i) it is the judiciary which has the primary duty to assert
and protect its integrity and the integrity of the processes over which the
judiciary presides; and (ii) that in doing so, it is advantageous to draw on the
support and experience both of local court-users and stakeholders as well as of
like-minded colleagues in other jurisdictions.
At its first meeting, the Judicial Integrity Group took two important decisions.
First, the Chief Justices recognised that the principle of accountability demands
that the national judiciary assume an active role in strengthening judicial
integrity by effecting such systemic reform as is within its competence and
capacity. Second, they recognised the urgent need for a universally acceptable
statement of judicial standards which, consistent with the principle of judicial
independence, is capable of being enforced at the national level by the judiciary,

1093
articles Commonwealth Law Bulletin
without the intervention of either the executive or legislative branches of
government. They emphasised that by adopting and enforcing appropriate
standards of judicial conduct among its members, the judiciary has it within its
power to take a significant and enduring step towards earning and retaining the
respect of the community. Accordingly, the Judicial Integrity Group resolved
that a national plan of action to combat corruption in the judiciary should be
adopted in each of the seven participating countries by the judiciary, in
consultation with appropriate ministries and institutions, the legal profession,
and civil society. To facilitate these processes, and to feed in to national action
plans, the Judicial Integrity Group made three proposals:
(i) That research be undertaken to create a survey instrument for the
collection of data relating to judicial corruption in order that specific
problem areas may be identified and the effectiveness of subsequent
reforms be tracked.
(ii) That existing judicial codes of conduct be analysed and a report be made
to the Group at its next meeting on the core considerations which recur
in such codes, the optional and additional considerations which occur in
some, but not all, such codes and which may or may not be suitable for
adoption in particular countries. This work would form the basis for an
International Judicial Code of Conduct which would be invaluable in
countries developing their own codes of conduct as lending weight to the
arguments of the reformers by setting international standards,
(iii) That initiatives and strategies which have already been taken to combat
corruption in the judiciary and related offices be collected. In this
connection, three initiatives in Karnataka State were noted: the
computerisation of judgments, the establishment of a judicial academy
for the training of judges, and a self-improvement scheme for judicial
officers.
The second meeting of the Judicial Integrity Group held in Bangalore in
February 2001 was "supported" by the UN High Commissioner for Human Rights
who was represented by Justice P N Bhagwati, Vice-Chairman of the UN Human
Rights Committee. An additional participant was Justice Clare L'Heureux Dube of
the Supreme Court of Canada. The Judicial Integrity Group had before it a draft
code of judicial conduct and draft survey instruments. The principal outcomes of
this meeting were: (i) The Bangalore Draft Code of Judicial Conduct, as a first
and major step towards evolving global standards of judicial behaviour,3 and (ii)
a decision to commence a pilot programme designed to strengthen judicial
integrity in at least two focus countries, utilising the survey instruments and other
appropriate mechanisms to identify the systemic weaknesses, if any, in the
judicial system. The Chief Justices of Uganda, Sri Lanka and Nigeria agreed to
undertake pilot programmes in their respective jurisdictions.

Pilot Programmes in Uganda, Sri Lanka and Nigeria

Three pilot programmes were conducted in Uganda, Sri Lanka and Nigeria. The
reports of national surveys of court users and other stakeholders in these three

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countries indicated several systemic weaknesses. These include the lack of
adequate training for judges, delay and lethargy in the judicial system, length of
court proceedings, lack of skill in the English language amongst some judges,
the disappearance of court records, prejudice, inappropriate socialising of judges
and lawyers, variations in sentencing, delay in delivering judgments, expensive
private legal services, and unofficial payments required to be made for various
administrative activities inherent in the judicial process.
A country-wide focus group consultation was conducted in Uganda, with the
Judicial Integrity Committee headed by a judge of the Supreme Court travelling
throughout the country meeting groups of civic leaders, court users, judicial
officers and other actors in the judicial system including lawyers, and police and
prison officers. The objective of that exercise was to ascertain and understand
the causes of the negative public image of the judiciary, and to solicit
suggestions on measures that could be employed to reverse that image. The
survey and focus group consultation reports in Uganda were discussed at a
national workshop of stakeholders, and an action plan prepared at that workshop
was placed before a three-day meeting of judges. A case audit for the purpose
of identifying the stages in a judicial proceeding at which inordinate delays take
place has been planned in Sri Lanka, simultaneously with stakeholder workshops
on a national and provincial basis, similar to those held in Nigeria. "Best
practice" material is being gathered and documented, drawing on the experience
of some of the more successful jurisdictions, such as Singapore, Hong Kong,
Karnataka State in India, and Australia, to facilitate the formulation of reform
programmes by the judiciaries in the focus countries.

The Bangalore Draft Code of Judicial Conduct

The Bangalore Draft Code of Judicial Conduct was not an attempt to reinvent
the wheel. Instead, it drew on the rules and principles already articulated in
national codes of principally common law jurisdictions and in regional and
international instruments. Apart from being more comprehensive, the Bangalore
Draft differed from its source material in at least one significant respect, namely,
its structure. It sought to identify the core values and then proceeded to state the
principle derived from each value, followed by a code of conduct designed to
give effect to each principle. The Judicial Integrity Group recognised, however,
that since the Bangalore Draft had been prepared by judges drawn principally
from common law countries, it was essential that it be scrutinised by judges of
other legal traditions to enable it to assume the status of a duly authenticated
draft international code of judicial conduct. The Judicial Integrity Group agreed
that a duly "validated" code containing universally accepted judicial standards
would complement the UN Basic Principles on the Independence of the
Judiciary by addressing the need for judicial accountability, and be capable of
being used, not only as a guide in fashioning new national codes, but also as a
reference for testing and revising existing national codes.
Following its adoption by the Judicial Integrity Group, the Bangalore Draft
Code of Judicial Conduct, was presented to, and discussed in, other broader
judicial fora, such as the Commonwealth Workshop on Judicial Accountability

1095
articles Commonwealth Law Bulletin
(Malaysia), the Commonwealth Colloquium on Combating Corruption within the
Judiciary (Cyprus), the Global Judges Symposium on Sustainable Development
and the Rule of Law (South Africa) and the Conference of the International
Institute for Public Ethics (Australia). It has been published in books and several
legal journals, referred to in a parliamentary select committee report, and cited
by speakers on numerous occasions. It was examined in detail and commented on
by the Working Party of the Consultative Council of European Judges chaired by
Lord Justice Mance at a two-day meeting in Strasbourg. Through the American
Bar Association's Central and Eastern Law Initiative (ABA/CEELI), the Bangalore
Draft was translated into the national languages, and reviewed by judges, of the
Central and Eastern European countries. The Bangalore Draft was then revised in
the light of these comments and criticisms, and by reference to more recent codes
of judicial conduct, including that of the People's Republic of China, and the
Guide to Judicial Conduct published by the Council of Chief Justices of Australia.

The Bangalore Principles of Judicial Conduct

In November 2002, at a Round-Table Meeting of Chief Justices of civil law
countries, held at the Peace Palace in The Hague, the Bangalore Draft Code of
Judicial Conduct was reviewed and revised. The meeting, which was chaired by
Judge Weeramantry, was attended by the Chief Justices (or their representatives)
of Brazil, Mexico, Norway, The Netherlands, France, Czech Republic, Egypt,
Mozambique and the Philippines. Eight Judges of the International Court of
Justice, representing the legal systems of Madagascar, Hungary, Germany, Sierra
Leone, United Kingdom, Brazil, Egypt and the United States of America, also
participated. The draft that emerged from that meeting was The Bangalore
Principles of Judicial Conduct.
The core values and derivative principles recognised in that document are as
follows:
(i) Independence: Judicial independence is a prerequisite to the rule of law
and a fundamental guarantee of a fair trial. A judge shall therefore
uphold and exemplify judicial independence in both its individual and
institutional aspects.
(ii) Impartiality: Impartiality is essential to the proper discharge of the
judicial office. It applies not only to the decision itself but also to the
process by which the decision is made.
(iii) Integrity: Integrity is essential to the proper discharge of the judicial office,
(iv) Propriety: Propriety and the appearance of propriety, are essential to the
performance of all of the activities of a judge,
(v) Equality: Ensuring equality of treatment to all before the courts is
essential to the due performance of the judicial office,
(vi) Competence and Diligence: Competence and diligence are prerequisites
to the due performance of judicial office.
These values and principles are followed by more detailed statements of their
application.
There was a significant consensus among judges of the common law and the
civil law systems in regard to the core values, although there was some

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Volume 28, No. 2, 2002 articles
disagreement on the scheme and order in which they ought to be placed. For
instance, the question was raised whether Independence, Impartiality, and
Integrity (in that order) ought not to have precedence over Propriety and Equality.
Concern was also expressed by civil law judges on the use of the word "code"
(in view of its prescriptive and exhaustive connotations in civil law countries),
and the preambular statement that the "real source of judicial power is public
acceptance of the moral authority and integrity of the judiciary". It was argued
that the "real source" was the Constitution; and that too great an emphasis on the
ultimate dependence of the judicial power upon general acceptance could in some
circumstances even be dangerous.
On the application of the values and principles, civil law judges questioned,
for example, why judges should be under a general duty to keep themselves
informed of the financial interests of their family, unrelated to any possible
risk to their actual or apparent impartiality. They considered it positively
inappropriate that a judge who would otherwise be disqualified might, instead of
withdrawing from the proceedings, continue to participate if the parties agreed
that he or she should do so. They questioned the width and appropriateness of
the direction from which the Bangalore Draft Code approached quite common
situations such as marriage or a close personal relationship with a lawyer, and
suggested instead that the focus in such cases should not be on prohibiting the
relationship, but on the judge's need to withdraw in any case where the other
party to the relationship was involved. They wondered whether it was wise to
have a list of "permitted" non-legal activities, and did not believe that
prohibitions on fund-raising activities on behalf of a charitable organisation, on
serving as an executor, administrator, trustee, guardian or other fiduciary,
accepting appointment to a commission of inquiry, or testifying as a character
witness, should be generally accepted as an international standard.
It was, however, in respect of political activity that the principal divergence
occurred. In Switzerland, judges are elected on the basis of their party
membership. In some other European countries, judges have the right to engage
in politics and be elected as members of local councils (even while remaining as
judges) or of Parliament (their judicial status being in this case suspended). Civil
law judges, therefore, argued that at present there was no general international
consensus that judges should either be free to engage in or should refrain from
political participation. They suggested that it would be for each country to strike
its own balance between judges' freedom of opinion and expression on matters
of social significance and the requirement of neutrality. They conceded,
however, that even though membership of a political party or participation in
public debate on the major problems of society might not be prohibited, judges
must at least refrain from any political activity liable to compromise their
independence or jeopardise the appearance of impartiality.

The UN Commission on Human Rights

The Bangalore Principles of Judicial Conduct were annexed to the report
presented to the 59th Session of the UN Commission on Human Rights by the
United Nations Special Rapporteur on the Independence of Judges and Lawyers,

1097
articles Commonwealth Law Bulletin
Dato' Param Cumaraswamy. He observed that, when adopted and applied in
Member States, the Principles would go some way to support the integrity of
judicial systems and could be used to complement the United Nations Basic
Principles on the Independence of the Judiciary to secure greater accountability.4
On 29 April 2003, the Commission on Human Rights, by a resolution adopted
without dissent, noted the Bangalore Principles of Judicial Conduct and brought
those Principles "to the attention of Member States, the relevant United Nations
organs and intergovernmental and non-governmental organisations for their
consideration".5
In the briefings and discussions that preceded the adoption of this resolution,
three matters were stressed. The first was the need for the Judicial Group to
bring these Principles to the attention of national judiciaries who should be
encouraged to apply them within their jurisdictions. The second was the need to
formulate enforcement modalities. The third was the need to consult with heads
of judiciaries who had not so far been consulted on the text. Three months
earlier, at its third meeting held in Colombo, the Judicial Integrity Group had
identified three other tasks as well: (i) to revisit or update the United Nations
Basic Principles on the Independence of the Judiciary, particularly the
provisions relating to the appointment and disciplinary control of judges; (ii) to
develop continuing education material for judges, focusing on the need to
sensitise them, in particular, to international law, human rights and humanitarian
law, and philosophical perspectives; and (iii) to proceed with the preparation of
Draft Principles of Conduct of Judicial Employees.
Being a document drafted solely by judges, The Bangalore Principles of
Judicial Conduct, is potentially a valuable instrument for self-regulation. If
complemented by the establishment of an independent mechanism for
investigating and dealing with public complaints, with protection against
victimisation being guaranteed to informants, complainants and witnesses, these
Principles could be profitably employed to buttress and strengthen the concept
of judicial independence. In the face of growing evidence that public confidence
in judicial systems is being undermined, the responsibility to restore it rests
primarily with the judiciary. If the judiciary neglects to do so, the legislature and
the executive will surely and necessarily intervene, and by so doing, will
irreparably erode the principle of judicial independence upon which the
judiciary is founded and by which it is sustained.

Conclusion
The Judicial Integrity Group, as at present constituted, consists of Chief Justice
K M Hasan of Bangladesh, Chief Justice Hilario Davide Jr of The Philippines,
Chief Justice N K Jain of Karnataka State, India, Deputy Chief Justice Pius
Langa of South Africa, Chief Justice B J Odoki of Uganda, Chief Justice B A
Samatta of Tanzania, Deputy Chief Justice Adel Omar Sherif of Egypt, Chief
Justice Kedar Nath Upadhyay of Nepal, and Chief Justice M L Uwais of
Nigeria. HE Judge C G Weeramantry, former Vice-President of the International
Court of Justice, functions as Chairperson, while the Justice Michael Kirby,

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Volume 28, No. 2, 2002 articles
Judge of the High Court of Australia, serves as Rapporteur. Justice P N
Bhagwati and the UN Special Rapporteur on the Independence of Judges and
Lawyers, participate as Observers. The Co-ordinator, Dr Nihal Jayawickrama, is
assisted by Mr Jeremy Pope, former Director of the Commonwealth Secretariat's
Legal and Constitutional Affairs Division. The work of the Judicial Integrity
Group has been funded from its inception by the Department for International
Development, United Kingdom (DFID), while two of its meetings were funded
by the United Nations Centre for International Crime Prevention.
The Judicial Integrity Group is unique in several respects.
First, the Judicial Integrity Group is an autonomous entity, owned and
driven by its members, all of whom are heads of the judiciary in their
respective countries, enjoying independence from the executive.
Second, consistent with the principle of judicial independence, the Judicial
Integrity Group is seeking to strengthen the integrity of the judicial system
through self-regulation (eg by the application of an effective code of judicial
conduct drafted and enforced by the judiciary), and through reform
measures, formulated in consultation with court users and other
stakeholders, which the judiciary is competent to undertake on its own
through the exercise of its own powers (such as oversight, and/or
disciplining of judges, leadership, reorganisation of the registry, reform of
trial and appellate procedures, and the training of judicial officers).
Third, the Judicial Integrity Group is seeking to formulate and to promote
principles, standards and instruments relating to vital aspects of the judicial
system (such as independence and accountability) based on its own
experience.
Fourth, the Judicial Integrity Group facilitates critical peer review by senior
judges of other countries and other legal systems in a unique, two-way
interactive learning process.
The Judicial Integrity Group has proved itself to be a catalyst for change, and
its work has aroused considerable interest throughout the judicial world, as
evidenced by the number of requests received for information, documentation and
assistance. The response from the judicial and legal community, the desire of both
intergovernmental and non-governmental organisations to associate themselves
with its work, and the willingness of several other Chief Justices to join the
Group, evidence its growing credibility. For its part, the Judicial Integrity Group
proposes to globalise its initiative by enlarging its membership to include judges
from other legal systems and other geographical regions, and to begin addressing
those global issues relating to judicial integrity in respect of which judges are in
a unique position to influence change, including developing or updating principles,
standards and instruments. Its pioneering effort, the Bangalore Principles of
Judicial Conduct, provide a mechanism for judges to be held accountable to the
jurisdictions they serve, not by resorting to regular election or recall by popular
vote, but through their absolute adherence to a set of core judicial values.

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articles Commonwealth Law Bulletin
Endnotes
1. LLB (Ceylon), PhD (London), Member of the Sri Lanka Bar, Co-ordinator, Judicial
Integrity Programme, Formerly Executive Director, Transparency International, Berlin;
Sallows Professor of Human Rights, University of Saskatchewan, Canada; Associate
Professor of Law, University of Hong Kong; Permanent Secretary to the Ministry of
Justice, and Member of the Judicial Services Advisory Board, Sri Lanka, Author, The
Judicial Application of Human Rights Law (Cambridge University Press, 2002).
2. The Hon Justice Michael Kirby, "Judicial Integrity — International Guidelines", paper
presented at the Fiji Law Society Annual Convention 2003, Fiji Islands, 2 August 2003.
3. The text of the Bangalore Draft Code of Judicial Conduct was published in both the
Commonwealth Law Bulletin (see (2001) 27 CLB 408) and The Journal of the
Commonwealth Magistrates and Judges Association.
4. UN document E/CN.4/2003/65 of 10 January 2003.
5. Commission on Human Rights resolution 2003/43.

ANNEX

T H E BANGALORE PRINCIPLES OF JUDICIAL CONDUCT

Preamble
WHEREAS the Universal Declaration of Human Rights recognises as fundamental the
principle that everyone is entitled in full equality to a fair and public hearing by an
independent and impartial tribunal, in the determination of rights and obligations and of
any criminal charge.
WHEREAS the International Covenant on Civil and Political Rights guarantees that all
persons shall be equal before the courts, and that in the determination of any criminal
charge or of rights and obligations in a suit at law, everyone shall be entitled, without
undue delay, to a fair and public hearing by a competent, independent and impartial
tribunal established by law.
WHEREAS the foregoing fundamental principles and rights are also recognised or
reflected in regional human rights instruments, in domestic constitutional, statutory and
common law, and in judicial conventions and traditions.
WHEREAS the importance of a competent, independent and impartial judiciary to the
protection of human rights is given emphasis by the fact that the implementation of all
the other rights ultimately depends upon the proper administration of justice.
WHEREAS a competent, independent and impartial judiciary is likewise essential if the
courts are to fulfil their role in upholding constitutionalism and the rule of law.
WHEREAS public confidence in the judicial system and in the moral authority and
integrity of the judiciary is of the utmost importance in a modern democratic society.
WHEREAS it is essential that judges, individually and collectively, respect and honor judicial
office as a public trust and strive to enhance and maintain confidence in the judicial system.
WHEREAS the primary responsibility for the promotion and maintenance of high
standards of judicial conduct lies with the judiciary in each country.
AND WHEREAS the United Nations Basic Principles on the Independence of the Judiciary
are designed to secure and promote the independence of the judiciary, and are addressed
primarily to States.
THE FOLLOWING PRINCIPLES are intended to establish standards for ethical conduct
of judges. They are designed to provide guidance to judges and to afford the judiciary a

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framework for regulating judicial conduct. They are also intended to assist members of the
executive and the legislature, and lawyers and the public in general, to better understand
and support the judiciary. These principles presuppose the judges are accountable for their
conduct to appropriate institutions established to maintain judicial standards, which are
themselves independent and impartial, and are intended to supplement and not to derogate
from existing rules of law and conduct which bind the judge.

Value 1:
INDEPENDENCE

Principle:
Judicial independence is a prerequisite to the rule of law and fundamental guarantee of a
fair trial. A judge shall therefore uphold and exemplify judicial independence in both its
individual and institutional aspects.

Application:
1.1 A judge shall exercise the judicial function independently on the basis of the judge's
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.
1.2 A judge shall be independent in relation to society in general and in relation to the
particular parties to a dispute which the judge has to adjudicate.
1.3 A judge shall not only be free from inappropriate connections with, and influence by,
the executive and legislative branches of government, but must also appear to a
reasonable observer to be free therefrom.
1.4 In performing judicial duties, a judge shall be independent of judicial colleagues in
respect of decisions which the judge is obliged to make independently.
1.5 A judge shall encourage and uphold safeguards for the discharge of judicial duties in
order to maintain and enhance the institutional and operational independence of the
judiciary.
1.6 A judge shall exhibit and promote high standards of judicial conduct in order to
reinforce public confidence in the judiciary which is fundamental to the maintenance
of judicial independence.

Value 2:
IMPARTIALITY

Principle:
Impartiality is essential to the proper discharge of the judicial office. It applies not only to
the decision itself but also to the process by which the decision is made.

2.1 A judge shall perform his or
2.2 A judge shall ensure that his
enhances the confidence of
impartiality of the judge and
Application:
her judicial duties without favour, bias or prejudice.
or her conduct, both in and out of court, maintains and
the public, the legal profession and litigants in the
of the judiciary.

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2.3 A judge shall, so far as is reasonable, so conduct himself or herself as to minimise
the occasions on which it will be necessary for the judge to be disqualified from
hearing or deciding cases.
2.4 A judge shall not knowingly, while a proceeding is before, or could come before, the
judge, make any comment that might reasonably be expected to affect the outcome of
such proceeding or impair the manifest fairness of the process. Nor shall the judge make
any comment in public or otherwise that might affect the fair trail of any person or issue.
2.5 A judge shall disqualify himself or herself from participating in any proceedings in
which the judge is unable to decide the matter impartially or in which it may appear
to a reasonable observer that the judge is unable to decide the matter impartially.
Such proceedings include, but are not limited to, instances where
2.5.1 the judge has actual bias or prejudice concerning a party or personal knowledge
of disputed evidentiary facts concerning the proceedings;
2.5.2 the judge previously served as a lawyer or was a material witness in the matter
in controversy; or
2.5.3 the judge, or a member of the judge's family, has an economic interest in the
outcome of the matter in controversy:
Provided that disqualification of a judge shall not be required if no other tribunal
can be constituted to deal with the case or, because of urgent circumstances, failure
to act could lead to a serious miscarriage of justice.

Value 3:
INTEGRITY

Principle:
Integrity is essential to the proper discharge of the judicial office.

Application:
3.1 A judge shall ensure that his or her conduct is above reproach in the view of a
reasonable observer.
3.2 The behaviour and conduct of a judge must reaffirm the people's faith in the integrity
of the judiciary. Justice must not merely be done but must also be seen to be done.

Value 4:
PROPRIETY
Principle:
Propriety, and the appearance of propriety, are essential to the performance of all of the
activities of a judge.

Application:
4.1 A judge shall avoid impropriety and appearance of impropriety in all of the judge's
activities.
4.2 As a subject of constant public scrutiny, a judge must accept personal restrictions
that might be viewed as burdensome by the ordinary citizen and should do so freely
and willingly. In particular, a judge shall conduct himself or herself in a way that is
consistent with the dignity of the judicial office.

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4.3 A judge shall, in his or her personal relations with individual members of the legal
profession who practise regularly in the judge's court, avoid situation which might
reasonably give rise to the suspicion or appearance of favouritism or partiality.
4.4 A judge shall not participate in the determination of a case which any member of
the judge's family represents a litigant or is associated in any manner with the case.
4.5 A judge shall not allow the use of the judge's residence by a member of the legal
profession to receive clients or other members of the legal profession.
4.6 A judge, like any other citizen, is entitled to freedom of expression, belief,
association and assembly, but in exercising such rights, a judge shall always conduct
himself or herself in such a manner as to preserve the dignity of the judicial office
and the impartiality and independence of the judiciary.
4.7 A judge shall inform himself or herself about the judge's personal and fiduciary
financial interests and shall make reasonable effort to be informed about the
financial interests of members of the judge's family.
4.8 A judge shall not allow the judge's family, social or other relationships improperly
to influence the judge's judicial conduct and judgment as a judge.
4.9 A judge shall not use or lend the prestige of the judicial office to advance the private
interests of the judge, a member of the judge's family or of anyone else, nor shall a
judge convey or permit others to convey the impression that anyone is in a special
position improperly to influence the judge in the performance of judicial duties.
4.10 Confidential information acquired by a judge in the judge's judicial capacity shall
not be used or disclosed by the judge for any other purpose not related to the
judge's judicial duties.
4.11 Subject to the proper performance of judicial duties, a judge may:
4.11.1 write, lecture, teach and participate in activities concerning the law, the legal
system, the administration of justice or related matters;
4.11.2 appear at a public hearing before an official body concerned with matters
relating to the law, the legal system, the administration of justice or related
matters;
4.11.3 serve as a member of an official body, or other government commission,
committee or advisory body, if such membership is not inconsistent with the
perceived impartiality and political neutrality of a judge; or
4.11.4 engage in other activities if such activities do not detract from the dignity of
the judicial office or otherwise interfere with the performance of judicial
duties.
4.12 A judge shall not practise law whilst the holder of judicial office.
4.13 A judge may form or join associations of judges or participate in other organisations
representing the interests of judges.
4.14 A judge and members of the judge's family, shall neither ask for, nor accept, any
gift, bequest, loan or favour in relation to anything done or to be done or omitted to
be done by the judge in connection with the performance of judicial duties.
4.15 A judge shall not knowingly permit court staff or others subject to the judge's
influence, direction or authority, to ask for, or accept, any gift, bequest, loan or
favour in relation to anything done or to be done or omitted to be done in
connection with his or her duties or functions.
4.16 Subject to law and to any legal requirements of public disclosure, a judge may
receive a token gift, award or benefit as appropriate to the occasion on which it is
made provided that such gift, award or benefit might not reasonably be perceived as
intended to influence the judge in the performance of judicial duties or otherwise
give rise to an appearance of partiality.

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Value 5:

EQUALITY

Principle:
Ensuring equality of treatment to all before the courts in essential to the due performance
of the judicial office.

Application:
5.1 A judge shall be aware of, and understand, diversity in society and differences arising
from various sources, including but not limited to race, colour, sex, religion, national
origin, caste, disability, age, marital status, sexual orientation, social and economic
status and other like causes ("irrelevant grounds").
5.2 A judge shall not, in the performance of judicial duties, by words or conduct,
manifest bias or prejudice towards any person or group on irrelevant grounds.
5.3 A judge shall carry out judicial duties with appropriate consideration for all persons,
such as the parties, witnesses, lawyers, court staff and judicial colleagues, without
differentiation on any irrelevant ground, immaterial to the proper performance of such
duties.
5.4 A judge shall not knowingly permit court staff or others subject to the judge's
influence, direction or control to differentiate between persons concerned, in a matter
before the judge, on any irrelevant ground.
5.5 A judge shall require lawyers in proceedings before the court to refrain from
manifesting, by words or conduct, bias or prejudice based on irrelevant grounds,
except such as are legally relevant to an issue in proceedings and may be the subject
of legitimate advocacy.

Value 6:
COMPETENCE AND DILIGENCE

Principle:
Competence and diligence are prerequisites to the due performance of judicial office.

Application:
6.1 The judicial duties of a judge take precedence over all other activities.
6.2 A judge shall devote the judge's professional activity to judicial duties, which include
not only the performance of judicial functions and responsibilities in court and the
making of decisions, but also other tasks relevant to the judicial office or the court's
operations.
6.3 A judge shall take reasonable steps to maintain and enhance the judge's knowledge,
skills and personal qualities necessary for the proper performance of judicial duties,
taking advantage for this purpose of the training and other facilities which should be
made available, under judicial control, to judges.
6.4 A judge shall keep himself or herself informed about relevant developments of
international law, including international conventions and other instruments
establishing human rights norms.

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6.5 A judge shall perform all judicial duties, including the delivery of reserved decisions,
efficiently, fairly and with reasonable promptness.
6.6 A judge shall maintain order and decorum in all proceedings before the court and be
patient, dignified and courteous in relation to litigants, jurors, witnesses, lawyers and
others with whom the judge deals in an official capacity. The judge shall require
similar conduct of legal representatives, court staff and others subject to the judge's
influence, direction or control.
6.7 A judge shall not engage in conduct incompatible with the diligent discharge of
judicial duties.

IMPLEMENTATION

By reason of the nature of judicial office, effective measures shall be adopted by national
judiciaries to provide mechanisms to implement these principles if such mechanisms are
not already in existence in their jurisdictions.

DEFINITIONS

In this statement of principles, unless the context otherwise permits or requires, the
following meanings shall be attributed to the words used:
"Court staff" includes the personal staff of the judge including law clerks.
"Judge" means any person exercising judicial power, however designated.
"Judge's family" includes a judge's spouse, son, daughter, son-in-law, daughter-in-law,
and any other close relative or person who is a companion or employee of the judge and
who lives in the judge's household.
"Judge's spouse" includes a domestic partner of the judge or any other person of either
sex in a close personal relationship with the judge.

Explanatory Note
1. At its first meeting held in Vienna in April 2000 on the invitation of the United Nations
Centre for International Crime Prevention, and in conjunction with the 10th United
Nations Congress on the Prevention of Crime and the Treatment of Offenders, the
Judicial Group on Strengthening Judicial Integrity (comprising Chief Justice Latifur
Rahman of Bangladesh, Chief Justice Y Bhaskar Rao of Karnataka State in India,
Justice Govind Bahadur Shrestha of Nepal, Chief Justice M L Uwais of Nigeria,
Deputy President Pius Langa of the Constitutional Court of South Africa, Chief Justice
F L Nyalali of Tanzania, and Justice B J Odoki of Uganda, meeting under the
chairmanship of Judge Christopher Weeramantry, Vice-President of the International
Court of Justice, with Justice Michael Kirby of the High Court of Australia as
Rapporteur, and with the participation of Dato' Param Cumaraswamy, UN Special
Rapporteur on the Independence of Judges and Lawyers) recognised the need for a
code against which the conduct of judicial officers may be measured. Accordingly, the
Judicial Group requested that codes of judicial conduct which had been adopted in
some jurisdictions be analyzed, and a report be prepared by the Co-ordinator of the
Judicial Integrity Programme, Dr Nihal Jayawickrama, concerning: (a) the core
considerations which recur in such codes; and (b) the optional or additional
considerations which occur in some, but not all, such codes and which may or may not
be suitable for adoption in particular countries.

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articles Commonwealth Law Bulletin
2. In preparing a draft code of judicial conduct in accordance with the directions set out
above, reference was made to several existing codes and international instruments
including, in particular, the following:
(a) The Code of Judicial Conduct adopted by the House of Delegates of the
American Bar Association, August 1972.
(b) Declaration of Principles of Judicial Independence issued by the Chief Justice of
the Australian States and Territories, April 1997.
(c) Code of Conduct for the Judges of the Supreme Court of Bangladesh, prescribed
by the Supreme Judicial Council in the exercise of power under Article 96(4)(a)
of the Constitution of the People's Republic of Bangladesh, May 2000.
(d) Ethical Principles for Judges, drafted with the co-operation of the Canadian
Judges Conference and endorsed by the Canadian Judicial Council, 1998.
(e) The European Charter on the Statute for Judges, Council of Europe, July 1998.
(f) The Idaho Code of Judicial Conduct 1976.
(g) Restatement of Values of Judicial Life adopted by the Chief Justices Conference
of India, 1999.
(h) The Iowa Code of Judicial Conduct.
(i) Code of Conduct for Judicial Officers of Kenya, July 1999.
(j) The Judges' Code of Ethics of Malaysia, prescribed by the Yang di-Pertuan
Agong on the recommendation of the Chief Justice, the President of the Court
of Appeal and the Chief Judges of the High Courts, in the exercise of powers
conferred by Article 125(3A) of the Federal Constitution of Malaysia, 1994.
(k) The Code of Conduct for Magistrates in Namibia.
(1) Rules Governing Judicial Conduct, New York State, USA.
(m) Code of Conduct for Judicial Officers of the Federal Republic of Nigeria.
(n) Code of Conduct to be observed by Judges of the Supreme Court and of the
High Courts of Pakistan.
(o) The Code of Judicial Conduct of the Philippines, September 1989.
(p) The Canons of Judicial Ethics of the Philippines, proposed by the Philippines Bar
Association, approved by the Judges of First Instance of Manila, and adopted for
the guidance of and observance by the Judges under the administrative
supervision of the Supreme Court, including municipal judges and city judges.
(q) Yandina Statement: Principles of Independence of the Judiciary in Solomon
Islands, November 2000.
(r) Guidelines for Judges of South Africa, issued by the Chief Justice, the President
of the Constitutional Court, and the Presidents of High Courts, the Labour
Appeal Court, and the Land Claims Court, March 2000.
(s) Code of Conduct for Judicial Officers of Tanzania, adopted by the Judges and
Magistrates Conference, 1984.
(t) The Texas Code of Judicial Conduct.
(u) Code of Conduct for Judges, Magistrates and Other Judicial Officers of Uganda,
adopted by the Judges of the Supreme Court and the High Court, July 1989.
(v) The Code of Conduct of the Judicial Conference of the United States.
(w) The Canons of Judicial Conduct for the Commonwealth of Virginia, adopted and
promulgated by the Supreme Court of Virginia, 1998.
(x) The Code of Judicial Conduct adopted by the Supreme Court of the State of
Washington, USA, October 1995.

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(y) The Judicial (Code of Conduct) Act, enacted by the Parliament of Zambia,
December 1999.
(z) Draft Principles on the Independence of the Judiciary ("Siracusa Principles"),
prepared by a committee of experts convened by the International Association of
Penal Law, the International Commission of Jurists, and the Centre for the
Independence of Judges and Lawyers, 1981.
(aa) Minimum Standards of Judicial Independence adopted by the International Bar
Association, 1982.
(bb) United Nations Basic Principles on the Independence of the Judiciary, endorsed
by the UN General Assembly, 1985.
(cc) Draft Universal Declaration on the Independence of Justice ("Singhvi
Declaration") prepared by Mr L V Singhvi, UN Special Rapporteur on the Study
on the Independence of the Judiciary, 1989.
(dd) The Beijing Statement of Principles of the Independence of the Judiciary in the
Lawasia Region, adopted by the 6th Conference of Chief Justices, August 1997.
(ee) The Latimer House Guidelines for the Commonwealth on good practice
governing relations between the Executive, Parliament and the Judiciary in the
promotion of good governance, the rule of law and human rights to ensure the
effective implementation of the Harare Principles, 1998.
(ff) The Policy Framework for Preventing and Eliminating Corruption and Ensuring
the Impartiality of the Judicial System, adopted by the expert group convened by
the Centre for the Independence of Judges and Lawyers, February 2000.
3. At its second meeting held in Bangalore in February 2001, the Judicial Group
(comprising Chief Justice Mainur Reza Chowdhury of Bangladesh, Justice Claire
L'Heureux Dube of Canada, Chief Justice P V Reddi of Karnataka State in India,
Chief Justice Leshav Prasad Upadhyay of Nepal, Chief Justice M L Uwais of Nigeria,
Deputy Chief Justice Pius Langa of South Africa, Chief Justice S N Silva of Sri
Lanka, Chief Justice B A Samatta of Tanzania, and Chief Justice B J Odoki of Uganda,
meeting under the chairmanship of Judge Weeramantry, with Justice Kirby as
Rapporteur, and with the participation of the UN Special Rapporteur and Justice P N
Bhagwati, Chairman of the UN Human Rights Committee, representing the UN High
Commissioner for Human Rights) proceeding by way of examination of the draft
placed before it, identified the core values, formulated the relevant principles, and
agreed on the Bangalore Draft Code of Judicial Conduct. The Judicial Group
recognised, however, that since the Bangalore Draft had been developed by judges
drawn principally from common law countries, it was essential that it be scrutinised by
judges of other legal traditions to enable it to assume the status of a duly authenticated
international code of judicial conduct.
4. The Bangalore Draft was widely disseminated among judges of both common law and
civil law systems and discussed at several judicial conferences. In June 2002, it was
reviewed by the Working Party of the Consultative Council of European Judges
(CCJE-GT), comprising Vice-President Gerhard Reissner of the Austrian Association
of Judges, Judge Robert Fremr of the High Court of Czech Republic, President Alain
Lacabarats of the Cour d'Appel de Paris in France, Judge Otto Mallmann of the
Federal Administrative Court of Germany, Magistrate Raffaele Sabato of Italy, Judge
Virgilijus of the Lithuanian Court of Appeal, Premier Conseiller Jean-Claude Wiwinius
of the Cour d'Appel of Luxembourg, Juge Conseiller Orlando Afonso of the Court of
Appeal of Portugal, Justice Dusan Ogrizek of the Supreme Court of Slovenia,
President Johan Hirschfeldt of the Svea Court of Appeal in Sweden, and Lord Justice
Mance of the United Kingdom. On the initiative of the American Bar Association, the
Bangalore Draft was translated into the national languages, and reviewed by judges, of

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the Central and Eastern European countries; in particular, of Bosnia-Herzegovina,
Bulgaria, Croatia, Kosovo, Romania, Serbia and Slovakia.
5. The Bangalore Draft was revised in the light of the comments received from CCJE-
GT and others referred to above; Opinion no.l (2001) of CCJE on standards
concerning the independence of the judiciary; the draft Opinion of CCJE on the
principles and rules governing judges' professional conduct, in particular ethics,
incompatible behaviour and impartiality; and by reference to more recent codes of
judicial conduct including the Guide to Judicial Conduct published by the Council
of Chief Justices of Australia in June 2002, the Model Rules of Conduct for Judges
of the Baltic States, the Code of Judicial Ethics for Judges of the People's Repub-
lic of China, and the Code of Judicial Ethics of the Macedonian Judges Association.
6. The revised Bangalore Draft was placed before a Round-Table Meeting of Chief
Justices (or their representatives) from the civil law system, held in the Peace Palace
in The Hague, Netherlands, in November 2002, with Judge Weeramantry presiding.
Those participating were Judge Vladimir de Freitas of the Federal Court of Appeal of
Brazil, Chief Justice Iva Brozova of the Supreme Court of the Czech Republic, Chief
Justice Mohammad Fathy Naguib of the Supreme Constitutional Court of Egypt
(assisted by Justice Dr Adel Omar Sherif), Conseillere Christine Chanet of the Cour de
Cassation of France, President Genaro David Gongora Pimentel of the Suprema Corte
de Justicia de la Nacion of Mexico, President Mario Mangaze of the Supreme Court
of Mozambique, President Pirn Haak of the Hoge Raad der Nederlanden, Justice Trond
Dolva of the Supreme Court of Norway, and Chief Justice Hilario Davide of the
Supreme Court of the Philippines (assisted by Justice Reynato S Puno). Also
participating in one session were the following Judges of the International Court of
Justice: Judge Raymond Ranjeva (Madagascar), Judge Geza Herczegh (Hungary),
Judge Carl-August Fleischhauer (Germany), Judge Abdul G Koroma (Sierra Leone),
Judge Rosalyn Higgins (United Kingdom), Judge Francisco Rezek (Brazil), Judge
Nabil Elaraby(Egypt), and Ad-Hoc Judge Thomas Frank (USA). The UN Special
Rapporteur was in attendance. The Bangalore Principles of Judicial Conduct was the
product of this meeting.

Making Waves and Breaking the Mould

in Civil Procedure in the Pacific: The
New Civil Procedure Rules of Vanuatu
By Sue Farran and Edward R Hilll

Introduction
This paper is a consequence and reflection of the experience and observation of
over eighteen months involvement in the drafting of new rules of civil procedure
for the courts of the Pacific island state of Vanuatu. Unlike many jurisdictions,
Vanuatu has no standing committee or commission for reforming the rules of
court procedure and so, when it decided to draft a new set of rules, a voluntary
working party was called together. Its members were drawn from private
practice, the Bench, the state law office and academia. The task of the working

1108