Report of the Special Rapporteur on the Independence of Judges and Lawyers
Report of the Special Rapporteur on the Independence of Judges and Lawyers, Mr. Leandro Despouy (A/HRC/4/25)
Distinguished Mr. President, Mr. Rapporteur,
The International Commission of Jurists (ICJ) welcomes the 13th report by the Special Rapporteur on the Independence of Judges and Lawyers, Mr. Leandro Despouy. The ICJ shares your assessment and concerns about persistent threats to the independence of judges, lawyers and judicial officers and repeated failures to observe international standards relating to the right to a fair trial. Such breaches of accepted standards undermine the administration of justice, the rule of law and democracy.
States of emergency
Mr. Rapporteur, the ICJ has seen over many years how threats to the independence of the judiciary, and the undermining of fair trial rights, are often heralded by the declaration of a state of emergency. The ICJ has repeatedly expressed concerns when countries unjustifiably declare a state of emergency. Many then establish artificial special or extraordinary tribunals. And interference into the work of judges and lawyers often follows the declaration of a state of emergency. We therefore welcome your recommendation that the Human Rights Council should adopt an International Declaration to clarify rights and duties during a state of emergency. It would build on Article 4 of the ICCPR, jurisprudence, General Comments by the Human Rights Committee and developments in international human rights law, such as the advances reflected in the International Convention for the Protection of All Persons Against Enforced Disappearance.
Mr. Rapporteur, could you elaborate further on the purpose and content of the proposed Declaration? The ICJ considers it should clarify what rights are non-derogable and set out the best way for states to ensure respect for human rights during a state of emergency, without encroaching on the independence and impartiality of the judiciary.
Mr. Rapporteur, following the establishment of the Special Tribunals in Cambodia, the ICJ welcomes the swearing in of judges of the Extraordinary Chambers and that prosecutors
have initiated their investigations of serious crimes committed by the Khmer Rouge.
The ICJ appeals to all governments to co-operate with international human rights-related bodies and mechanisms to enhance the administration of justice and the rule of law, including by inviting the Special Rapporteur on the Independence of Judges and Lawyers to make a country visit.
The ICJ welcomes the Special Rapporteur’s expression of interest in visiting Sri Lanka.
The ICJ is deeply concerned about the constitutional paralysis that is damaging the independence of Sri Lanka’s institutions, including the judiciary and the Judicial Service Commission. In the absence of a functioning Constitutional Council, the President has made, contrary to the 17th Amendment to the Sri Lankan Constitution, direct appointments to the Judicial Service Commission, the Supreme Court, the Court of Appeal and most recently the Attorney-General. Such unilateral actions by the executive can only undermine the rule of law in Sri Lanka and need to be rectified urgently.
The ICJ is also concerned about direct threats to the independence of the judiciary in Sri Lanka. This was illustrated in the inquest into the killing of 17 Action Contre la Faim (ACF) aid workers in Muttur last year, during which the Judicial Service Commission, via the Ministry of Justice and Law Reforms, ordered the case to be transmitted from one Magistrate to another. After having observed the inquest, the ICJ concluded that the substitution of Magistrates amounted to an unwarranted interference in the proceedings that was not in accordance with international standards.
In the opinion of the Special Rapporteur, in what ways could the judiciary in Sri Lanka act to uphold their independence and protect human rights during the armed conflict?
In Pakistan, on 9 March 2007, the President issued a notification under Article 209 of the Constitution restraining the Chief Justice from acting as Chief Justice and a judge of the Supreme Court. On the same day, the Supreme Judicial Council was convened and was presided over by a newly sworn-in acting Chief Justice. The Supreme Judicial Council issued a notice indicating that it had received a Reference from the President under Article 209 of the Constitution and “ordered” the Chief Justice not to perform functions as a Judge of the Supreme Court and/or the Chief Justice of Pakistan
The ICJ sent a high-level mission to Pakistan in April. It confirmed that the Presidential decision, taken together with the events that unfolded subsequently, including the use of excessive force against lawyers and other civil society actors demonstrating against the Chief Justice’s suspension, undermined the independence and integrity of the Pakistani judiciary.
According to the Special Rapporteur, how could the international community assist in ensuring that the independence of the Pakistani judiciary is restored?
Mr. President, an ICJ mission led by a former Justice of the Supreme Court of Canada has just left Zimbabwe and is presenting its conclusions to the media in Johannesburg this morning. The arbitrary arrest, detention and beatings of lawyers by police last month represent a tragic escalation in the harassment and intimidation of the legal profession in Zimbabwe. Three times last month the police also ignored the order of a court to release two detained lawyers, only further entrenching the impunity and undermining the rule of law. The ICJ calls on the Government of Zimbabwe to control the police and hold them accountable and to permit lawyers to carry out their professional duties.
We urge the Special Rapporteur to pay particular attention to the deepening crisis in Zimbabwe.
In Colombia, the Constitutional Court has showed its independence in May 2006 by declaring unconstitutional parts of the Justice and Peace law, which granted impunity to paramilitary groups and seriously limited the rights of victims to truth, justice and reparation. However, since that ruling, the Government has adopted new decrees, which seek to reverse that judicial decision. More recently, the Government has proposed to introduce a new law to pardon politicians involved in crimes committed by paramilitaries.
The ICJ would welcome the Special Rapporteur`s views on the situation in Colombia.
Thank you, Mr. President.AdvocacyNon-legal submissions