Respect for the rule of law is founded on public trust of the judiciary and, to maintain that trust, judges must uphold the highest standards of independence, impartiality and integrity, and must be accountable to those standards.
The guarantee of judicial decisions by independent tribunals means that judges must be free to “decide matters before them impartially, on the basis of the facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason”. {{59}} Thus, both state actors and non-state actors alike must respect the independence of the judiciary and refrain from action aimed at improperly influencing members of the judiciary, undermining their independence and impartiality. While respecting the hierarchy between the courts of first instance and higher courts international standards clarify that other judges, must also respect the independence of their colleagues within the scope of the exercise of judicial functions: “No one must give or attempt to give the judge orders or instructions of any kind, that may influence the judicial decisions of the judge, except, where applicable, the opinion in a particular case given on appeal by the higher courts.” {{60}}
In the course of the exercise of judicial functions, judges must be impartial, and be seen to be impartial. Judges “must not allow their judgment to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other.” Further, even where an individual judge might in fact be able to ignore a personal relationship to one of the parties to a case, he or she should step aside from the case to protect against an apprehension of bias: “the tribunal must also appear to a reasonable observer to be impartial.”{{61}}
Judges must also ensure that their conduct is above reproach in the view of a reasonable observer. They must avoid impropriety and the appearance of impropriety in all their activities. Their behaviour must reinforce the people’s confidence in the integrity of the judiciary.{{62}}
A judicial code of conduct, drafted primarily by judges and members of the legal profession and consistent with international standards,{{63}} can help to safeguard judicial integrity and protect against conflicts of interest.{{64}} Pursuant to international standards, such a judicial code of conduct, which should be enshrined in the law, should serve as the basis for the determination of cases of alleged judicial misconduct within a fair disciplinary system.{{65}}
Complaints about judicial misconduct must be processed expeditiously and fairly under an appropriate procedure that is subject to independent review.{{66}} The judge in question has the right to a fair hearing before an independent and impartial body. The body responsible for discipline of judges should be independent of the executive,{{67}} plural and composed mainly (if not solely) of judges and members of the legal profession.{{68}} The judge’s rights to a fair proceeding, including to notice of the accusations against him or her, to adequate time and facilities to prepare and present a defence including through counsel, to challenge the evidence against him or her and present witnesses must be respected.Decisions must be based on established standards of judicial conduct, and sanctions must be proportionate. Decisions to suspend or remove a judge must be limited to cases in which the incapacity or behaviour of a judge renders the individual unfit to discharge his or her judicial duties. {{69}} Decisions and sanctions in disciplinary proceedings should be subject to independent judicial review (although this may not apply to decisions of the highest court or the legislature in impeachment proceedings).{{70}}
In order to safeguard the independence of the judiciary, individual judges should also enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.{{71}}
Myanmar does not have a Judicial Service Commission or other comparable independent body entrusted with the discipline of judges. Judges sitting on the Constitutional Tribunal, Supreme Court, and High Courts are subject to impeachment proceedings by Parliament. Grounds for impeachment of these judges include “misconduct” and “inefficient discharge of duties assigned by law”. {{72}} Further, it is not clear that any formal mechanisms exist to ensure the integrity and accountability of lower court judges. The role of the executive and legislature in the removal of superior court judges and the lack of clarity as regards the mechanism applicable to lower court judges threatens judicial independence and undermines security of tenure, which is one of the basic conditions for judges to retain their independence: without it, they are susceptible to undue pressure from different quarters, mainly from those who exert influence and control over their career.
Moreover, political and military influence over judges remains a major obstacle. Depending on the nature of the case, judges render decisions based on orders coming from government officials, in particular local and regional authorities. The most problematic cases are those that challenge the government, officials or their vested interests. They also include cases (generally criminal) involving human rights defenders or alleged acts involving violations of human rights by authorities; land grabbing by authorities, companies or powerful individuals; grievances of ethnic and minority groups; and political activities by high profile individuals.{{73}}
Furthermore, corruption in the form of misuse of influence and monetary incentives for particular legal outcomes is prevalent throughout the legal system, and some judges condition favourable decisions on bribes. The lawyers with whom the ICJ spoke about this issue noted that while the degree of corruption varies (being at its worst at the lower rungs of the system), it is never absent from the equation: it is so deeply embedded into the legal system that it is essentially taken for granted.{{74}}
[[59]]59. UN Basic Principles on the Independence of the Judiciary, Principles 1-7, in particular [expand title=”Principle 2;”]The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Articles 2-8; Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, [expand title=”Value 1;”]Judicial independence is a pre-requisite 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.[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, Article 1-4.[[59]]
[[60]]60. Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 4.”]No one must give or attempt to give the judge orders or instructions of any kind, that may influence the judicial decisions of the judge, except, where applicable, the opinion in a particular case given on appeal by the higher courts.[/expand][[60]]
[[61]]61. Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), [expand title=”para. 21;”]The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.[/expand] UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 2;”]The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 25;”]A judge shall not sit in a case where a reasonable apprehension of bias on his part or conflict of interest of incompatibility of functions may arise.[/expand] Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, [expand title=”Value 2″]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.[/expand] and [expand title=”Value 4;”]Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 5.”]Impartiality and restraint. In the performance of the judicial duties the judge must be impartial and must so be seen. The judge must perform his or her duties with restraint and attention to the dignity of the court and of all persons involved.[/expand][[61]]
[[62]]62. Bangalore Principles of Judicial Conduct, Adopted by the Judicial Group on Strengthening Judicial Integrity, as revised at the Round Table Meeting of Chief Justices held at the Peace Palace, The Hague, 25-26 November 2002, [expand title=”Value 3″]Integrity is essential to the proper discharge of the judicial office.[/expand] and [expand title=”Value 4;”]Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 5-7.”]
Art.5. Impartiality and restraint.
In the performance of the judicial duties the judge must be impartial and must so be seen. The judge must perform his or her duties with restraint and attention to the dignity of the court and of all persons involved.
Art.6. Efficiency.
The judge must diligently and efficiently perform his or her duties without any undue delays.
Art.7 Outside activity.
The judge must not carry out any other function, whether public or private, paid or unpaid, that is not fully compatible with the duties and status of a judge. The judge must not be subject to outside appointments without his or her consent.[/expand][[62]]
[[63]]63. See Bangalore Principles of Judicial Conduct; International Bar Association Minimum Standards of Judicial Independence, para. 35-42.[[63]]
[[64]]64. See Bangalore Principles of Judicial Conduct, Preamble and ‘Implementation’.[[64]]
[[65]]65. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 19.”]All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.[/expand][[65]]
[[66]]66. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 17″]A charge or complaint made against a judge in his-her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.[/expand] and [expand title=”20;”] Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 28.”]The proceedings for discipline of judges shall ensure fairness to the judge and the opportunity of a full hearing.[/expand][[66]]
[[67]]67. Human Rights Committee, Concluding Observations on Azerbaijan, UN Doc. CCPR/C/AZE/CO/3 (2009), [expand title=”para. 12;”]The Committee remains concerned that, despite the reforms undertaken and the progress made during the reporting period, through, inter alia, the amendments in the Judges Act, the adoption of the Judicial Council Act, the establishment of the statute of the Judges’ Selection Committee, the Code of Ethics for Judges, the State party’s judiciary does not appear to be fully independent from the executive branch or from political pressure. The Committee is also concerned about reports that corruption within the judiciary remains a problem (art. 14). The State party should strengthen its efforts to ensure a fully independent judiciary. Given the important prerogatives of the Judicial Council, in particular regarding selection, promotion, and disciplining of members of the judiciary, the State party should ensure that the Judicial Council, in its composition and work, is fully independent from the executive so as to create conditions ensuring full independence of the judiciary. The State party should increase efforts to combat corruption, in particular within its judiciary, by investigating promptly and thoroughly all incidents of suspected corruption. If corruption is established, the officials concerned should face criminal and not only disciplinary sanctions.[/expand] Human Rights Committee, Concluding Observations on Honduras, UN Doc. CCPR/C/HND/CO/1 (2006), [expand title=”para. 16;”]The Committee notes the State party’s implementation of selection procedures for judges in accordance with the Judicial Council Act. It is concerned, however, at the failure to establish an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession (article 14 of the Covenant). The State party should take effective action to safeguard the independence of the judiciary, including the prompt establishment of an independent body to safeguard the independence of the judiciary and to supervise the appointment, promotion and regulation of the profession.[/expand] Human Rights Committee, Concluding Observations on Kosovo (Serbia), UN Doc. CCPR/C/UNK/CO/1 (2006), [expand title=”para. 20.”]The Committee is concerned about the absence of adequate guarantees for the independence of international judges and prosecutors. It is concerned about the low remuneration of local judges and prosecutors, the low representation of ethnic minorities in the judiciary, the excessive length of civil court proceedings and court backlogs and the frequent failure to enforce judgements (art. 14). UNMIK, in cooperation with PISG as required, should establish independent procedures for the recruitment, appointment and discipline of international judges and prosecutors, ensure adequate terms and conditions for local judges and prosecutors whereby they are shielded from corruption, increase the representation of ethnic minorities in the judiciary, assign additional judges to courts with case backlogs and ensure enforcement of judgements without delay.[/expand][[67]]
[[68]]68. Leandro Despouy, Special Rapporteur on the independence of judges and lawyers, Report to the Human Rights Council, UN Doc. A/HRC/11/41 (2009), [expand title=”para. 28-29.”]
28. The composition of this body matters greatly to judicial independence as it is required to act in an objective, fair and independent manner when selecting judges. While a genuinely plural composition of this body is recommended with legislators, lawyers, academicians and other interested parties being represented in a balanced way, in many cases it is important that judges constitute the majority of the body so as to avoid any political or other external interference. In the Special Rapporteur’s view, if the body is composed primarily of political representatives there is always a risk that these “independent bodies” might become merely formal or legal rubber-stamping organs behind which the Government exerts its influence indirectly.
29. In order to ensure that such a body is apt to select judges in an objective, fair and independent manner, the judiciary and other parties directly linked with the justice system must have a substantial say with respect to selecting and appointing the members of such a body. According to some regional standards, members of the independent body should be selected by the judiciary.[/expand][[68]]
[[69]]69. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 16;”]Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 20;”]Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority.[/expand] Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 10.”]Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority.[/expand][[69]]
[[70]]70. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 17-20;”]
17. A charge or complaint made against a judge in his/her judicial and professional capacity shall be processed expeditiously and fairly under an appropriate procedure. The judge shall have the right to a fair hearing. The examination of the matter at its initial stage shall be kept confidential, unless otherwise requested by the judge.
18. Judges shall be subject to suspension or removal only for reasons of incapacity or behaviour that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings should be subject to an independent review. This principle may not apply to the decisions of the highest court and those of the legislature in impeachment or similar proceedings.[/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), Article 26-31; Universal Charter of the Judge, Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 8″]
Security of office.
A judge cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure. A judge must be appointed for life or for such other period and conditions, that the judicial independence is not endangered. Any change to the judicial obligatory retirement age must not have retroactive effect.
[/expand] and [expand title=”Article 11.”]
Administration and disciplinary action.
The administration of the judiciary and disciplinary action towards judges must be organized in such a way, that it does not compromise the judges genuine independence, and that attention is only paid to considerations both objective and relevant. Where this is not ensured in other ways that are rooted in established and proven tradition, judicial administration and disciplinary action should be carried out by independent bodies, that include substantial judicial representation. Disciplinary action against a judge can only be taken when provided for by pre-existing law and in compliance with predetermined rules of procedure.[/expand][[70]]
[[71]]71. UN Basic Principles on the Independence of the Judiciary, [expand title=”Principle 16;”]Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions [/expand] Draft Universal Declaration on the Independence of Justice (also known as the Singhvi Declaration), [expand title=”Article 20;”]Judges shall be protected from the harassment of personal litigation against them in respect of their judicial functions and shall not be sued or prosecuted except under an authorization of an appropriate judicial authority[/expand] Universal Charter of the Judge Approved by the International Association of Judges on 17 November 1999, [expand title=”Article 10.”]
Civil and penal responsibility.
Civil action, in countries where this is permissible, and criminal action, including arrest, against a judge must only be allowed under circumstances ensuring that his or her independence cannot be influenced.[/expand][[71]]
[[72]]72.Constitution, [expand title=”S. 302 (a)”](a) The President or the representatives of the Pyithu Hluttaw or Amyotha Hluttaw may impeach the Chief Justice of the Union or any Judge of the Supreme Court of the Union for any of the following reasons : (i) high treason; (ii) breach of any provision of the Constitution; (iii) misconduct;(iv) disqualifications of the qualifications of the Chief Justice of the Union and Judges of the Supreme Court of the Union prescribed under Section 310; (v) inefficient discharge of duties assigned by law.[/expand] and [expand title=”311(a).”](a) The Chief Justice of the High Court of the Region or State or Judges of the High Court of the Region or State may be impeached on any of the following reasons : (i) high treason; (ii) breach of any provision of the Constitution; (iii) misconduct; (iv) disqualification of the qualification of the Chief Justice of the High Court of the Region or State and Judges of the High Court of the Region or State prescribed under Section 310; (v) inefficient discharge of duties assigned by law.[/expand][[72]]
[[73]]73. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), p. 18, 40.[[73]]
[[74]]74. International Commission of Jurists, Right to Counsel: The Independence of Lawyers in Myanmar (December 2013), p. 15-16, 40.[[74]]
