Judges in peril

The issue of judicial independence has been in and out of the headlines all summer as politicians and judges have wrestled over how much discretion the judiciary should have in sentencing.

Of course, on the world stage, judicial independence is not always a question of such legal niceties.

It is no exaggeration to say that in some countries at certain times, the life expectancy of a judge or prosecutor is little better than that of a soldier on active service.

Judicial independence may be an unattainable (if not oxymoronic) ideal, but there is great scope for improvement.

The Centre for the Independence of Judges and Lawyers was set up by the International Commission of Jurists over 20 years ago to report on the problem. CIJL's annual reports,

Attacks on Justice, make interesting but depressing reading.

CIJL director Mona Rishmawi says: “Independence of the judiciary is about straightforward matters like the killing of judges.”

According to the organisation, 331 jurists (judges and lawyers) in 51 countries suffered “reprisals” in 1985. Nearly 30 of those lost their lives.

Interference with the judicial process rears its head in many disguises. In Nigeria, military tribunals have usurped the authority of even the highest civilian courts and the government simply ignores judicial decisions it disagrees with.

In Albania, police were brought in to prevent judges from carrying out their duties after the chief judge had opposed a draft constitution that was proposed by the country's president.

In Pakistan, the government has delayed implementing separation of powers between judiciary and executive.

Even large corporations have been in on the act. In Papua New Guinea, for instance, pressure has been put on the government to pass legislation that would make it illegal to institute or continue proceedings against Broken Hill Proprietary on the grounds of environmental damage.

Were this to succeed, it would be a particular setback as the country has traditionally had a highly independent judiciary, press and ombudsman.

In many parts of the world, the judges' worst enemy is simply a lack of resources. Being starved of funds by central government, courts cannot afford even basic equipment. Last year, the Peruvian judiciary was allocated only a third of the budget it requested.

As the CIJL points out: “If courts in Rwanda, Ethiopia and Cambodia lack pencils and paper, never mind qualified judges, how can they contribute to peace and stability in these countries?”

Western “developed” nations come in for a good deal of criticism as well. In the US, for example, President Clinton's office is said to have brought pressure to bear on a federal judge to reverse a decision on excluding evidence in a drugs case. Election fever has been blamed for blinding politicians to the fact that it is for the judiciary and not the executive to correct wrong decisions.

And we in the UK have no cause for complacency. Intimidation of defence lawyers in Northern Ireland receives a perennial mention in CIJL's dispatches.

Practical proposals to foster judicial independence that do not involve sacrificing the possibility of a fair trial are badly needed. For instance, a guarantee of anonymity for judges, prosecutors and witnesses – as has happened in Columbia and Peru – is one way of dealing with the problem, but the cost in terms of potential miscarriages of justice is high.

Rishmawi has a practical solution. “The idea of conditionality is popular at the moment. Many of these countries are recipients of aid and we can make reform of the judicial system a condition of continued support,” he says.

Malaysian lawyer Dato' Param Cumaraswamy is the United Nations' special rapporteur on the independence of judges and lawyers. He believes his most effective weapon against recalcitrant governments is the UN's influence.

“I can place my concerns on record and ask the government concerned to give an explanation. Many of them do respond. One actually stalled legislation to give me time to study it.”

Cumaraswamy has just completed a three-week trip to Peru and Columbia. Nigeria and Pakistan are next. He likes the Peruvian idea of making the judicial budget a constitutionally irreducible minimum, though such arrangements still rely on the goodwill of governments.

He believes that judicial independence is so fragile it cannot be considered safe in any country. The battle of right against might is not an evenly matched one.

The assertion of 17th century Irish judge John Philpot Curran that the price of liberty is eternal vigilance rings as true today as ever.