See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/258142596

Quest for Universal Standards of Judicial Integrity: Some Reflections on

the Bangalore Principles

Article  in  India Quarterly A Journal of International Affairs · June 2013

DOI: 10.1177/0974928413481885

CITATIONS READS

0 259

1 author:

Dejo Olowu
The University
71 PUBLICATIONS   255 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Children's Rights in Africa View project

All content following this page was uploaded by Dejo Olowu on 01 June 2020.

The user has requested enhancement of the downloaded file.

Article

Quest for Universal Standards of India Quarterly

69(2) 179–191
Judicial Integrity: Some Reflections © 2013 Indian Council
of World Affairs (ICWA)
on the Bangalore Principles SAGE Publications
Los Angeles, London,
New Delhi, Singapore,
Washington DC
DOI: 10.1177/0974928413481885
http://iqq.sagepub.com
Dejo Olowu
djolowu1@yahoo.co.uk

SE
Abstract

U
While the Bangalore Principles of Judicial Conduct, 2002, are not binding on states, they evidence high-

L
level support for the principle of judicial integrity. In addition, superior courts and judiciaries of diverse

IA
legal traditions have relied on the Bangalore Principles in codifying their minimum standards of judicial
integrity. Extrapolating from some of the core values of the Bangalore Principles, this article accentu-
C
ates some of the critical challenges implicated in establishing credible, independent and accountable
ER
judiciaries. Beyond the task of developing appropriate mechanisms for ensuring judicial integrity, this
article assesses the follow-up efforts to the Bangalore Principles, such as the draft Lusaka Measures
M

on the Implementation of the Bangalore Principles on Judicial Conduct, 2010, contending that while
these measures seek to quantify the critical elements of the Bangalore Principles, there are still areas
M

of concern. This article addresses a plethora of pertinent questions, advocating that the mechanisms
O

for judicial integrity should not be entirely controlled by the judiciary but be made to accommodate
C

sufficient lay representation, and furthermore, that current codes of judicial conduct be formulated as
enforceable rules and procedures in ways that would sustain public confidence in judicial processes.
R
FO

Keywords
Judiciary, independence accountability, integrity, codes of conduct, implementation
T
O
N

Introduction
There is no gain saying the fact that judicial independence and judicial accountability have gained exten-
sive attention from scholars and jurists, and that the number of significant writings over the past decades
had grown astoundingly. The writings emerging from these concepts carry with them a potentially broad
range of sub-topics and sub-themes, engendering the danger of obscuring the interconnectedness of these
two core concepts. This article is an effort towards an integrated conceptualisation of the twin concepts
of judicial independence and judicial accountability, particularly a decade after the landmark adoption of
a universal standard that seeks to obliterate unhelpful compartmentalisations, namely, the Bangalore
Principles of Judicial Conduct, 2002 (‘the Bangalore Principles’).1
180 Dejo Olowu

In the course of multilateral human rights agenda and standard-setting under the auspices of
the United Nations since 1948, a number of international and regional instruments have prescribed an
independent, impartial and competent judiciary as sine qua non for the rule of law. With particular
reference to the theme of this article, the Bangalore Principles come under spotlight in calibrating the
extent to which the notion of judicial integrity has gained validation one decade after. Underpinning the
evaluation of the Bangalore Principles after their first decade is the need to explore the possibility
of strengthening their elements and promises for the enhancement of all matters pertaining to judicial
independence, judicial accountability, judicial transparency, judicial ethics and judicial enforcement.
This article recognises that while a code of judicial conduct is potentially a valuable instrument for
self-regulation, for the provision of guidance to judges in the performance of their duties, and also offer-
ing the wider community a standard by which to measure and evaluate the performance of the judicial
sector, it argues that a code of judicial conduct will do little to improve judicial performance and enhance

SE
public confidence if it is not enforceable. While this article does not fail to appreciate the massive impor-
tance that the Bangalore Principles have garnered over the past decade, perhaps far above their predeces-

U
sors, this article makes no pretensions about its critical dimensions on these Principles.

L
For instance, while self-regulation by the judiciary is commendable, what should be the role of the

IA
public in the promotion of judicial integrity within the broader contexts of human rights, democratisation
and transparency? In addition to safeguarding the system for the appointment of persons of proven integ-
C
rity as guardians of the law, should equal attention not be paid to insulating judicial officers from pos-
ER
sible influences relating to the temptation of lucrative post-retirement benefits? The unmistakable
argument of this article is that the judiciary indeed needs to be independent of influence, particularly
M

from political and economic forces. However, judicial independence does not mean that judges and court
M

officials should have absolute liberty to behave as they please. Judicial independence is founded on
public trust, and to maintain that trust, judges must uphold the highest ethos of integrity. This article
O

evaluates contemporary attempts at defining the parameters of judicial integrity.

C
R
FO

Judicial Integrity: The Ascendancy of a Universal Concept

From the dawn of the Greco-Roman idea of democratic nation-states, it had been recognised that an
T

elected legislature or executive by itself cannot secure the liberty of citizens, and that what is required is
O

a fusion of democratic representation and the rule of law. In the common law world, and across numer-
N

ous other world regions, the rule of law has gained much currency in engendering the understanding that
for a democratic state to operate the rule of law, there must be a clear system of separation of powers with
correlative checks and balances among all the three arms of government—legislature, executive and
judiciary. In his Commentaries on the Laws of England, William Blackstone (1765, 57–58)2 summarised
the common law position as follows:

In this distinct and separate existence of the judicial power in a peculiar body of men, nominated indeed, but
not removable at pleasure, by the Crown, consists one main preservative of the public liberty; which cannot
subsist long in any state, unless the administration of common justice be in some degree separated both from the
legislative and also from the executive power. Were it joined with the legislative, the life, liberty, and property
of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their

India Quarterly, 69, 2 (2013): 179–191

Universal Standards of Judicial Integrity 181

own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet
judges are bound to observe. Were it joined with the executive, this union might soon be an over-balance for the
legislative.

This notion is of great antiquity in several jurisdictions, having a solid pedigree in the Magna Carta,
1215; the English Bill of Rights, 1689; the United States Declaration of Independence, 1776; the United
States Constitution, 1787; the French Declaration of the Rights of Man and the Citizen, 1789, among
others (Manning 2011; Olowu 2009; Woolman & Bishop 2008).
Within the dominant context of the modern-state, therefore, it has become axiomatic that the primary
and exclusive function of the judiciary is the fair and impartial resolution of disputes in accordance with
the law. In order to perform this function, the independence of every adjudicatory personnel or body,
otherwise known as judicial independence, has become a critical value in the modern world. The logical

SE
corollary to the foregoing is the idea of judicial accountability. Even though judges are expected to
be free from all personal sentiments and external inducements, yet because they are human, they can

U
be as susceptible to errors or whimsical judgements as any other human being, a fact which makes it
imperative that they should be subject to accountability mechanisms (Nobles and Schiff 2009).

L
IA
Since time immemorial, the competing demands for the independence of the judiciary to ensure fair
dispensation of justice, on the one hand, and the accountability of the judiciary to curb judicial excesses
C
and abuse, on the other, have been a subject of considerable concern to constitutionalists as one of great
ER
debate. The core of the quandary seems to be around how to assure adequate judicial accountability and
restriction in order to curb judicial abuses without meddling with the judicial independence that is essen-
M

tial if courts are to play their indispensable roles (Cumaraswamy and Nowak 2009; Jayawickrama 2007).
The particular manifestations of this quandary may take different forms in different societies, but the
M

tensions exist everywhere.

O

Reviewing the inevitable interconnection between judicial independence and judicial accountability
C

in any modern state, the United Nations Development Programme (UNDP) had posited that:
R

Judicial independence needs to go hand in hand with judicial accountability. Judicial accountability would help
FO

the judiciary in establishing public confidence in the court system. This accountability is also needed to fight
judicial corruption and to enhance the quality of the judicial services. Judicial independence and accountability
should be balanced. (UNDP 2003, 3)
T
O

Gewirtz (2005) had contended that the strain in balancing the demands of judicial independence and
N

judicial accountability broadly involves the tripartite dimensions of mindset of judges themselves; the rela-
tionships among court systems inter se; and the inter-relationships of the judiciary and other institutions.
While there is a broad consensus on the necessity of the co-existence of judicial independence and
judicial accountability for the rule of law to thrive in a modern state (Sifris 2008), what seems to be
problematic has been the question of the best means of ensuring judicial independence and judicial
accountability.
In an address presented to newly-appointed judges in Australia, the Australian Chief Justice, Sir
Gerard Brennan (1996), noted in the following words:

A judge’s role is to serve the community in the pivotal role of administering justice according to law. Your office
gives you that opportunity and that is a privilege. Your office requires you so to serve, and that is a duty. No doubt

India Quarterly, 69, 2 (2013): 179–191

182 Dejo Olowu

there were a number of other reasons, personal and professional, for accepting appointment, but the judge will
not succeed and will not find satisfaction in his or her duties unless there is a continual realisation of the impor-
tance of the community service that is rendered. Freedom, peace, order and good government - the essentials of
the society we treasure - depend in the ultimate analysis on the faithful performance of judicial duty. It is only
when the community has confidence in the integrity and capacity of the judiciary that the community is governed
by the rule of law. Knowing this, you must have a high conceit of the importance of your office. When the work
loses its novelty, when the case load resembles the burdens of Sisyphus, when the tyranny of reserved judgments
palls, the only permanently sustaining motivation to strive onwards is the realisation that what you are called on
to do is essential to the society in which you live.

Too often, two desirable qualities—accountability and independence—are debated without clarifying
to whom judges should be accountable or what is meant by an independent judiciary. Admittedly, this

SE
dilemma of balancing the scales of judicial integrity has been around since ancient times. It is indeed
arguable that the inclusion of Rule 5 in the Mesopotamian Code of King Hammurabi (1795–1750 bc)

U
was one of the earliest indications of concerns around judicial integrity. It provides:

L
If a judge try a case, reach a decision, and present his judgment in writing; if later error shall appear in his deci-

IA
sion, and it be through his own fault, then he shall pay twelve times the fine set by him in the case, and he shall

C
be publicly removed from the judge’s bench, and never again shall he sit there to render judgement. (King 1915)
ER
Under the medieval English justice system of the thirteenth century which gave birth to the common
law system now vastly practised around the world, newly-appointed judges and other judicial officers
M

who acted as the Regent’s representatives in the day-to-day administration of the common law swore
M

oaths to the Monarch that they would act impartially. This practice was reinforced by the Statute of
O

7 Richard II: For the Improvement of Justice, in 1384, as evidence of the Monarch’s assurances of fair
and effective justice, his capacity to control their judicial subordinates and the judicial system generally,
C

and to encourage public trust in, and therefore enthusiastic participation in, the English legal system
R

(Campbell 2000; Gewirtz 2005; Musson 2001). Whilst the rule of law has ceased being a matter of royal
FO

prerogative, the principles underlying judicial integrity in early common law traditions remain relevant
till present time. Among such critical elements are to ensure fair access to justice to citizens who are
subject to legal disputes; to ensure public trust and confidence in the administration of justice is main-
T

tained; and as a consequence, to ensure people readily participate in the judicial system as the forum to
O

resolve their disputes.

N

The understanding and application of the principles of judicial independence, accountability and
transparency continue to evolve even beyond legal systems akin to the common law traditions. Because
local contextual factors arise in diverse settings, with a range of histories and challenges, it is not pos-
sible to generalise as to how a given judicial system should operate. There is, however, increasing agree-
ment among nations, even nations with quite different judicial histories and legal systems, on
benchmarking principles and indicators of independence, accountability and transparency (Andenas
2007; Conser 2005; Mzikamanda 2007; Peerenboom 2006), a fact which has given robust currency to
the subject under discussion.
In the era of the rapid expansion of multilateral institutions that have given rise to a wide range
of supranational juridical and quasi-judicial bodies, the conducts of judicial officers, hitherto matters

India Quarterly, 69, 2 (2013): 179–191

Universal Standards of Judicial Integrity 183

confined to national jurisdictional domains, are becoming subjects of close scrutiny in what Terhechte
has described as ‘the globalization of the judiciary’ (2009, 503). The standardisation of judicial
integrity has become a major quest within several supranational, intergovernmental and regional
systems (Sifris 2008).
While the terminology ‘judicial integrity’ would appear to have become a convenient mantra encom-
passing the entire gamut of character, form and composition of a judicial body that would be classified
as ‘independent’ and ‘accountable’, there is no singular consensus on what can be used to systematically
assess the degree of independence of judiciaries worldwide (Andenas 2007; Stevens 1993). Yet, accusa-
tions about the violations of ‘judicial integrity’ are rife in several jurisdictions (Mayne 2007; Soeharno
2007). A decade ago, the then United Nations Special Rapporteur on the Independence of Judges and
Lawyers noted as follows:

SE
As will be seen from my reports, threats to judicial independence which began in the latter half of last century

U
continued and are still continuous. Even the developed nations are not spared. Judicial independence remains
fragile. It should not be taken for granted. It is the presence of an independent judiciary which distinguishes a

L
democracy from a totalitarian state. Hence, we must continue to be vigilant. (Cumaraswamy 2003, 29)

IA
What exactly, therefore, does ‘judicial integrity’ connote? What is its relevance in contemporary
C
discourses around constitutionalism and the rule of law? There has been no single definition of the
ER
term ‘judicial integrity’ in any literature, and thus, the term has remained elusive in nomenclature but
not in its content. The Judicial Group on Strengthening Judicial Integrity (the Judicial Integrity Group),
M

one of the foremost advocacy and support organisations committed to the promotion of judicial
M

integrity at the global level, defines the term broadly to include judicial independence, judicial transpar-
O

ency, judicial accountability, judicial ethics and the enforcement of judgments (Judicial Integrity
Group 2010). Another organisation with a similar focus, International Foundation for Electoral Systems
C

(IFES), avoided defining the term but propounded a list of 18 core principles that would constitute
R

judicial integrity. These are (a) guarantee of judicial independence, the right to a fair trial, equality under
FO

the law and access to justice; (b) institutional and personal/decisional independence of judges; (c) clear
and effective jurisdiction of ordinary courts and judicial review powers; (d) adequate judicial resources
and salaries; (e) adequate training and continuing legal education; (f) security of tenure; (g) fair and
T

effective enforcement of judgments; (h) judicial freedom of expression and association; (i) adequate
O

qualification and objective and transparent selection and appointment process; (j) objective and trans­
N

parent processes of the judicial career (promotion and transfer processes); (k) objective, transparent, fair
and effective disciplinary process; (l) objective and transparent court administration and judicial pro­
cesses; (m) judicial access to legal and judicial information; (n) public access to legal and judicial infor-
mation; (o) limited judicial immunity from civil and criminal suit; (p) conflict of interest rules;
(q) income and asset disclosure; and (r) high standards of judicial conduct and rules of judicial ethics
(IFES 2004).
The above principles enumerated by the IFES connote a wide range of issues related to the independ-
ence and accountability of the judiciary, both the institution and the judges as individual decision-
makers. It would appear that IFES chose this approach to the notion of ‘judicial integrity’ to highlight
the value of balancing the independence and accountability dilemmas and to make out in a methodical

India Quarterly, 69, 2 (2013): 179–191

184 Dejo Olowu

way related reforms that need to be undertaken. According to Keith Henderson and Violaine Autheman
(2003, 1), the two purveyors behind the judicial integrity principles (JIP),

the JIP represent high priority consensus principles or emerging best practices found in virtually all global and
regional governmental and non-governmental instruments related to the independence and impartiality of the
judiciary. The JIP are aimed at fostering an enabling environment and legal culture necessary for the rule of law
to take root, with specific emphasis on judicial independence, accountability and transparency.

As admitted by Henderson and Autheman (2003) and IFES (2004), although the concept of judicial
integrity had not been well established in any comprehensive form prior to 2002, the universality of the
principle finds its expression in several United Nations, intergovernmental, and non-governmental
instruments among which are the Universal Declaration of Human Rights, 1948; the UN Standard

SE
Minimum Rules for the Treatment of Prisoners, 1955; the International Covenant on Civil and Political
Rights, 1966; the UN Draft Principles on the Independence of the Judiciary, 1981 (the Syracuse

U
Principles); the IBA Minimum Standards of Judicial Independence, 1982; the Basic Principles on the
Independence of the Judiciary, 1985; the UN Procedures for the Effective Implementation of the Basic

L
IA
Principles on the Independence of the Judiciary, 1989; the Draft Universal Declaration on the
Independence of Justice, 1989 (the Singhvi Declaration).
C
To these must be added the American Bar Association Model Code of Judicial Conduct, 1990; the
ER
Recommendation No. R (94) 12 of the Committee of Ministers to Member States on the Independence,
Efficiency and Role of Judges, 1994; the Beijing Statement of Principles of the Independence of the Judiciary
M

in the LAWASIA Region, 1995; the European Charter on the Statute for Judges, 1998; the Declaration of
Caracas, 1998, adopted at the Ibero-American Summit of Presidents of Supreme Justice Tribunals and Courts
M

in Latin America, 4–6 March 1998; the African Union Guidelines and Principles on the Right to a Fair Trial
O

and Legal Assistance in Africa, 2003; the Beirut Declaration on the Independence of the Judiciary, drafted by
C

the First Arab Conference on Justice, 14–16 June 1999; the Cairo Declaration on Judicial Independence, for-
mulated at the Second Arab Justice Conference in February 2003, emphasising that ‘an independent judiciary
R

is the main pillar supporting civil liberties, human rights, comprehensive development processes, reforms in
FO

trade and investment regimes, regional and international economic cooperation, and the building of demo-
cratic institutions’;3 and the Burgh House Principles on the Independence of the International Judiciary, 2004.
T

At the national levels too, there has been a remarkable increase in safeguarding measures.4 The above lists are
O

by no means exhaustive but illustrate how entrenched and ubiquitous the principles of judicial integrity have
become in the contemporary age.
N

All the foregoing instruments thus far mentioned converge in the Bangalore Principles as the zenith
of all concerted efforts at establishing acceptable standards of judicial integrity. When taken together,
therefore, the inevitable conclusion that one logically draws is that there exists a significant body of
normative standards that constitutes the legal framework for the assertion that indeed indicates the
ascendancy of judicial integrity as the dominant determination of rule-based governance (Cumaraswamy
and Nowak 2009; Judicial Integrity Group 2010).
The judicial integrity concept presupposes that the principles of judicial independence, transparency
and accountability are philosophically and practically interconnected. The concept has inevitably gained
prominence at global, regional and national levels in evaluating best practices regarding the compass
of the roles and responsibilities of judges and the judiciary. The concept has emerged as the significant

India Quarterly, 69, 2 (2013): 179–191

Universal Standards of Judicial Integrity 185

factor of an efficient judiciary in contemporary time, particularly since the adoption of the Bangalore
Principles which make the concept the core ideal of an efficient judicial system.

The Bangalore Principles: Premises and Promises

At the invitation of the UN Centre for International Crime Prevention and Transparency International, a
non-governmental organisation against corruption, the Judicial Group on Strengthening Judicial Integrity
put forward the first draft of Bangalore Principles in Vienna, in 2000, which was predicated on a large
number of ethical codes for judiciaries. The Judicial Group consisted of the UN Special Rapporteur on
the Independence of Judges and Lawyers, and by Judge Weeramantry, vice-president of the International

SE
Court of Justice. The first draft was revised a number of times, for example at the Round Table Meeting
of Chief Justices in The Hague, so as to adequately reflect principles of both common law and civil law

U
traditions. The revised principles were adopted in November 2002 following a round-table meeting of
Chief Justices held at the Peace Palace, The Hague (IFES 2004).

L
IA
In April 2003, the Bangalore Principles were endorsed by the UN Commission on Human Rights and
brought ‘to the attention of Member States, the relevant United Nations organs and intergovernmental
C
and non-governmental organisations for their consideration’. The Bangalore Principles were subse-
ER
quently endorsed by the UN Commission on Crime Prevention and Criminal Justice, in April 2006. In
July 2006, the UN Economic and Social Council (ECOSOC) adopted a resolution (ECOSOC 2006/23)
M

in which it recognised the Bangalore Principles as representing a further development of, and as being
complementary to, the UN Basic Principles on the Independence of the Judiciary. Consequently,
M

ECOSOC invited Member States to encourage their judiciaries to take into consideration the Bangalore
O

Principles when reviewing or developing rules with respect to the professional and ethical conduct of
C

members of the judiciary (Jayawickrama 2007).

In its final form, the six fundamental values stated in the Bangalore Principles are as follows:
R

(a) judicial independence, both individual and institutional, as a prerequisite to the rule of law; (b) impar-
FO

tiality, not only to the decision itself but also to the process; (c) integrity; (d) propriety, and the appear-
ance of propriety; (e) equality of treatment to all; and (f) competence and diligence.
T

Each of these ‘values’ is supported by a statement of the ‘principle’ and a series of points relevant to
O

its ‘application’. Unquestionably, they overlap. Thus, the ‘principle’ of independence states: ‘Judicial
independence is a prerequisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall
N

therefore uphold and exemplify judicial independence in both its individual and institutional aspects’
(Value 1). The first point of its ‘application’ is ‘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’ (Application 1.1). That succinct pronouncement might be
thought to cover all six values. However, it is evidently not the theory but the practical implementation
which is more significant. Accordingly, the Bangalore Principles conclude with the need for effective
measures to be adopted to provide mechanisms to implement these principles.
Of course, canons of judicial behaviour have been attempted, repeatedly, to be drafted as a Code.
Several reliable and genuine documents exist at the national, regional and international levels. The fact

India Quarterly, 69, 2 (2013): 179–191

186 Dejo Olowu

remains that such a code is difficult to be framed and certainly cannot be crafted as a monolithic instru-
ment. Most of the existing canons originated at different epochs and have been handed down by genera-
tion after generation of jurists. The Bangalore Principles are only contributing to such vigorous efforts.
There are two aspects of judicial independence as contemplated under the Bangalore Principles:
external and internal. External independence of the judiciary implies that the judiciary must be independ-
ent of any outside institutions, including legislative, executive, political parties, other legal professions,
press, civil societies, litigants, or any other ‘forces outside of the judiciary itself that can encroach on the
autonomy of the judiciary collectively or of the individual judge’ (Russell and O’Brien 2001). Impartiality
requires that in the discharge of his judicial duty a judge is answerable to the law and his conscience only.
Impartiality is distinct from but interrelated with the concept of independence.
For purposes of analysis, judicial independence is a precondition to the rule of law and an essential
guarantee of a fair trial. It refers to both the individual and the institutional independence necessary for

SE
decision-making (Cumaraswamy and Nowak 2009). Judicial independence therefore entails a mental
element and a relationship to others, particularly to the executive branch of government. It is not

U
the privilege of a judge, but the right enjoyed by people when they invoke the jurisdiction of the courts

L
seeking and expecting justice.

IA
Independence relates to the duty of outsiders not to interfere with the judges, while the concept of
impartiality is the internal duty of the judiciary not to be influenced by any source and must be main-
C
tained during the whole process of the adjudication (Singhvi 1995). In the leading Canadian case on
ER
judicial independence, Valente v. R,5 Justice Le Dain, speaking for the unanimous court, discussed the
nature of judicial independence and impartiality and the distinction between the two terms. He stated that
M

‘impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in
M

a particular case’ while independence ‘connotes not merely a state of mind or attitude in the actual exer-
cise of judicial functions, but a status or relationship to others, particularly to the Executive branch of
O

government, that rests on objective conditions or guarantees’.

C

Judicial independence must thus be complemented by judicial accountability for a judiciary to be

virile. Accountability connotes application of dispassionate internal and external controls to hold judges
R

and the judiciary accountable for their actions. In recent years, the Bangalore Principles bear testimony
FO

to the amplified awareness within international judicial principles and instruments regarding accounta-
bility. These principles should therefore be considered to be a leading instrument on the subject of judi-
T

cial accountability. The Principles set forth standards for the ethical conduct of judges and ‘presuppose
O

that judges are accountable for their conduct to appropriate institutions established to maintain judicial
standards, which are themselves independent and impartial’. Judges, the world over, should themselves
N

be dynamic in their roles: first, by upholding the broader independence, impartiality and integrity of the
judicial system; and second, in vigorously maintaining appropriate personal standards of judicial con-
duct and performance (Jayawickrama 2011).

Judicial Integrity: Obstacles to a Universal Ideal

Notwithstanding the universal acceptance of judicial integrity as a fundamental constituent of a strong
legal system, its implementation in law and practice has proved difficult at various levels. To anyone
taking a quick glance at the Bangalore Principles, for instance, it has included all prevalent modern

India Quarterly, 69, 2 (2013): 179–191

Universal Standards of Judicial Integrity 187

provisions and seeks to tackle all the impediments to judicial integrity. However, these principles are not
without robust criticisms. One notable critic has been Greg Mayne (2007) whose main grudge with the
Bangalore Principles has been the absence of accountability mechanisms for judges. Truly, the Bangalore
Principles lack any internal mechanism for its effective implementation, a subject which it leaves to
national judiciaries.
However, Principle 10 of the UN Basic Principles on the Independence of the Judiciary establishes that

Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or quali-
fications in law. Any method of judicial selection shall safeguard against judicial appointments for improper
motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race,
colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a
requirement, that a candidate for judicial office must be a national of the country concerned, shall not be consid-

SE
ered discriminatory.

U
In other words, there is an assurance that the law recognises some form of implementation mechanism.
There is also the problematic dimension of the judiciary being its own monitor. Formal commitment

L
alone is not sufficient. Compliance should be visible such that rational observers would see that these are

IA
fully applied. The Bangalore Principles do not provide how judges should themselves monitor and eval-
C
uate their activities constantly and improve on mistakes. But then, who will monitor judges? The moni-
ER
toring of implementation of codes of conduct remains a problematic issue.
Beyond these weaknesses is the generalised language and style in which the Bangalore Principles are
M

couched as the Bangalore Principles do not lend themselves to straight incorporation into national stat-
utes. In their forms and substance, the Bangalore Principles at best simply commend themselves as
M

advisory nuggets for judicial conduct and nothing more.

O

The foregoing becomes more vivid when it is noted that the Bangalore Principles completely avoided
C

any mention of the lay population particularly the press or media, or assigning any role for them. The
task of maintaining an impartial and accountable judiciary must also naturally attract the dimension of
R

transparency. Assigning a role to the media, under judicial scrutiny, would heighten public confidence in
FO

the judicial system.

Compounding the sanctity of the judiciary is the weak job security. In many countries, the tenure of
judges is tenuous, a fact that could give rise to unnecessary pressure and fear. Power, money and political
T

clout are used to circumvent the law in many jurisdictions (ICJ 2004; IFES 2004; UNDP 2003; Verma
O

2010). Similarly, because the judiciary and judicial officers in many countries are underfunded, the
N

opportunities for international exposure to new adjudicatory skills are limited. This affects the approach
of many judicial officers to technical cases brought before them.
The above catalogue of impediments undoubtedly implicates the observance of the Bangalore
Principles.

Beyond Bangalore: Towards the Realisation of Promise

While different countries have approached this differently, it remains that the principles or rules that
regulate judges’ behaviour are to a large extent similar. All the normative standards mentioned in this

India Quarterly, 69, 2 (2013): 179–191

188 Dejo Olowu

work reflect essentially the same considerations. In general, judicial codes of conduct seek to ensure the
independence, impartiality, integrity and propriety of judges and express a common concern that all
before the courts are treated with equality. In light of this, whether codes of conduct or guidelines of ethi-
cal behaviour are enacted, or reliance on the general principles underlying such instruments is favoured,
disciplinary measures are and must be available, according to procedures that reflect the principles they
serve to protect, starting with the principle of the independence of the judiciary. The Bangalore Principles
have set the basis for such pursuit.
However, if the norms envisaged in the Bangalore Principles are to be lived experiences, judges must
be protected from pressure not only from the government but also from the public. In other words, judi-
cial codes of conduct must not become a contrivance for disgruntled litigants to dissipate resources and
pester judges. The role of a judge requires that she/he be given considerable immunity. Thus, any disci-
plinary system for judges must be transparent and accessible, whilst also providing the judge with a fair

SE
hearing and due process, including avenues of appeal against any sanctions imposed upon them.
In terms of the conditions of service, there should be systematic and periodic increase in remuneration

U
of the judges and other judicial staff and permanency in office for judges, subject, of course, to good

L
conduct, physical and mental competence. There should also be more standardised and stringent process

IA
for judicial impeachment of tainted judges.
It is salutary to mention that the Judicial Integrity Group (JIG), the purveyor of the judicial
C
integrity principle since 2000 has been responding to the weight of criticisms mounted against the
ER
Bangalore Principles. At its meeting in Lusaka, Zambia, in January 2010, the JIG adopted a draft of
the Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct, subject
M

to further review.6 Article 6(2) of the draft Measures contains a provision that the judiciary ‘should
M

actively promote transparency in the delivery of justice and ensure that, subject to judicial supervision,
the public, the media and court users have reliable access to all information pertaining to judicial
O

proceedings...’
C

The Lusaka Measures also state that the salaries, conditions of service and pensions of judges should
R

be guaranteed by law and should not be altered to their disadvantage after appointment—a recommenda-
FO

tion of legislative protection for judicial remuneration. Furthermore, the Lusaka Implementation
Measures make it clear that there is a major role for the judiciary as a body, an addition to the enormous
responsibility which the independence of the judiciary places on individual judges.
T

If the JIG carries its intentions out as portrayed in the draft Lusaka Measures as well as its unequivo-
O

cal commitment to the principle of ‘judicial integrity’ as expressed in the Lusaka Declaration on Judicial
N

Integrity, 2010, the world may be on the path to the crystallisation of a truly universal and efficient
standard of judicial integrity.

Conclusion
Global standards, while not always directly enforceable, invariably signify global consensus. The
Bangalore Principles are comprehensive and set out what are today considered as universal standards of
judicial conduct for judges whether in national, regional or international tribunals. As already indicated,
more States are incorporating the Principles in their domestic code of ethics for judges. The task that

India Quarterly, 69, 2 (2013): 179–191

Universal Standards of Judicial Integrity 189

remains is to ensure compliance with the Bangalore Principles as only compliance with its values will
enhance judicial integrity and promote global justice ethos.
To this end, this article views the civil society as well as law and policy-makers as veritable actors in
utilising these standards as the basis of their engagement with governments and judiciaries on the issues
of judicial integrity. Efforts must not be spared in bringing to the attention of judiciaries the existence of
the Bangalore Principles and encourage their adoption, or the adoption of a similar code, and the devel-
opment of national enforcement mechanisms. It has been pointed out that a need exists to encourage
discussions among judges within national jurisdictions on issues of judicial accountability, and the need
to uphold adequate standards.
It will be apt to conclude this article with the glowing admonition of Cyrus Dass, former President of
the Commonwealth Lawyers’ Association, in his paper entitled ‘Judges and Judicial Accountability’,

SE
1999:

U
Justice is a consumer product and must therefore meet the test of confidence, reliability and dependability like
any other product if it is to survive market scrutiny.  It exists for the citizenry ‘at whose service only the system

L
of justice must work.’ Judicial responsibility, accountability and independence are in every sense inseparable. 

IA
They are, and must be, embodied in the institution of the judiciary.7

C
ER
Far from being an ex cathedra pronouncement on all the dynamics that should inform the realisation
of the promise of the Bangalore Principles, this article would have served its purpose if it stimulates
further intellectual discourses and strategic action.
M
M

Acknowledgement
O

This material is based upon work supported by the National Research Foundation (South Africa). Any
C

opinion, findings, conclusions or recommendations expressed are solely those of the author.
R
FO

Notes
1. Bangalore Principles of Judicial Conduct, 2002 (‘the Bangalore Principles’). UN Doc E/CN.4/2003/65,
http://www.unodc.org/pdf/corruption/bangalore_e.pdf (accessed on 21 December 2012).
T

2. Quoted in Campbell (2000).

O

3. The Explanatory Note to the Bangalore Principles contains a long list of the myriad instruments that were
N

consulted in drafting it.

4. Among the numerous standards of judicial integrity applicable within national jurisdictions are as follows:
Code of Judicial Conduct for Judges adopted in terms of Section 12 of the Judicial Commission Act, 1994
(South Africa); Restatement of Values of Judicial Life adopted by the Indian judiciary, 1999; Regulation of
Judicial Conduct for the Judges of the Islamic Republic of Afghanistan, 2007; Code of Ethics for Members of
the Judiciary, 2008 (Malta); Code of Conduct for Judges, 2009 (Nepal); Judicial Code of Conduct Rules, 2010
(Tonga); Code of Conduct for Members of the Judiciary of the Isle of Man, 2011; Tbilisi Recommendations on
Judicial Integrity, 2011.
5. (1985) 2 S.C.R. 673, 24 D.L.R. (4th) 161, 49 C.R. (3d) 97, 23 C.C.C. (3d) 289 at pp. 201-222 C.C.C.
6. See Judicial Integrity Group (JIG), 2010.
7. Quoted in Justice Thomas Masuku (2010).

India Quarterly, 69, 2 (2013): 179–191

190 Dejo Olowu

References
Andenas, M. (2007). A European perspective on judicial independence and accountability. The International
Lawyer, 41(1), 1–19.
Brennan, G. (1996, 13 October). The role of the judge. Address by the Chief Justice of Australia, at the National
Judicial Orientation Programme, Wollongong. Retrieved 5 April 2012, from http://www.hcourt.gov.au/assets/
publications/speeches/former-justices/brennanj/brennanj_wollong.htm
Campbell, E. (2000). Oaths and affirmations of public office under English law: An historical retrospective. Journal
of Legal History, 21(3), 1–32.
Conser, J. (2005). Achievement of judicial effectiveness through limits on judicial independence: A comparative
approach. North Carolina Journal of International Law and Commercial Regulation, 31(1), 255–344.
Cumaraswamy, D.P. (2003, December). Acceptance speech of the ‘2002 Justice in the World’ Award, 5 June 2003,
Madrid, Spain, p. 29, quoted in Thiru, S. Strengthening the independence and efficiency of the judiciary.

SE
Retrieved 5 April 2012, from http://www.aseanlawassociation.org/docs/w1_malaysia.pdf
Cumaraswamy, D.P. and Nowak, M. (2009). Human rights in criminal justice systems. Background Paper, 9th

U
Informal Asia-Europe Meeting, Strasbourg, France, 18–20 February 2009.
Gewirtz, P. (2005). Independence and accountability of courts. China Law Review, 1(1), 11–26.

L
Henderson, K. and Autheman, V. (2003). A model state of the judiciary report: A strategic tool for promoting,

IA
monitoring and reporting on judicial integrity reforms at the country, regional and global levels. 11th Annual
International Anti-Corruption Conference, 25–28 May 2003, Seoul, South Korea.
C
International Commission of Jurists (ICJ) (2004). International principles on the independence and accountability
ER
of judges, lawyers and prosecutors: A practitioners’ guide. Geneva: ICJ.
International Foundation for Electoral Systems (IFES) (2004). Global best practices: Judicial integrity standards and
M

consensus principles. IFES Rule of Law Series. Retrieved 5 April 2012, from http://www.ifes.org/publication/
e34efa3403c4f206c11404a6fbc37cd0/WhitePaper_1_FINAL.pdf
M

Jayawickrama, N. (2007). The Bangalore Principles of Judicial Conduct. Seminar on ‘The Role of Lawyers, the
O

Bar and the Bench in Preventing and Combating Corruption within the Judicial System’, hosted by the Lawyers
Council of Thailand and the American Bar Association, Asia Law Institute, UN Conference Centre, Bangkok,
C

Thailand, 19–20 February 2007.

R

Jayawickrama, N. (2011, 23 July). A breach of faith. Retrieved 5 April 2012, from http://www.island.lk/index.
FO

php?page_cat=article-details&page=article-details&code_title=30811
Judicial Integrity Group (JIG) (2010). The record of the sixth meeting of the judicial group on strengthening judicial
integrity, Lusaka, Zambia, 21–22 January 2010.
T

King, L.W. (Trans.) (1915). Code of Hammurabi. Retrieved 21 December 2012, from http://www.sacred-texts.com/
O

ane/ham/index.htm
Mayne, G. (2007). ‘Judicial integrity: The accountability gap and the Bangalore Principles’, in Transparency
N

International (Ed.), Global Corruption Report 2007 (pp. 40–43). Cambridge: Cambridge University Press.
Manning, J.F. (2011). Separation of powers as ordinary interpretation. Harvard Law Review, 124(8), 1939–2040.
Masuku, T. (2010). Professional conduct and judicial accountability: Issues and possible enforcement mechanisms,
Maseru, Lesotho, 28–29 July 2010. Retrieved 5 April 2012, from http://www.icj.org/dwn/database/Masuku_J-
ProfessionalConduct&Judicial%20Accountability-Swaziland.pdf
Musson, A. (2001). Medieval law in context: The growth of legal consciousness from Magna Carta to the peasants’
revolt. Manchester: Manchester University Press.
Mzikamanda, R.R. (2007). The place of the independence of the judiciary and the rule of law in democratic sub-
Saharan Africa. Paper presented at the South African Institute for Advanced Constitutional, Public, Human
Rights and International Law (SAIFAC), Johannesburg, South Africa, 14 November 2007.

India Quarterly, 69, 2 (2013): 179–191

Universal Standards of Judicial Integrity 191

Nobles, R. and Schiff, D. (2009). Why do judges talk the way they do? International Journal of Law in Context,
5(1), 25–49.
Olowu, D. (2009). An integrative rights-based approach to human development in Africa. Pretoria: Pretoria
University Law Press.
Peerenboom, R. (2006). Judicial independence and judicial accountability: An empirical study of individual case
supervision. The China Journal, 55(1), 67–92.
Russell, P.H. and O’Brien, D.M. (Eds) (2001). Judicial independence in the age of democracy. Charlottesville, VA:
University Press of Virginia.
Sifris, R. (2008). Weighing judicial independence against judicial accountability: Do the scales of the International
criminal court balance? Chicago-Kent Journal of International & Comparative Law, 8, 88–110.
Singhvi, L.M. (1995). Report of Special Rapporteur on independence of judges and lawyers, UN Doc E/CN.4/
Sub.2/1995/18/Add.1.1.

SE
Soeharno, J. (2007). Is judicial integrity a norm? An inquiry into the concept of judicial integrity in England and the
Netherlands. Utrecht Law Review, 3(1), 8–23.
Stevens, R. (1993). The Independence of the judiciary: The view from the Lord Chancellor’s office. Oxford: Oxford

U
University Press.
Terhechte, J.P. (2009). Judicial ethics for a global judiciary—How judicial networks create their own codes of

L
IA
conduct. German Law Journal, 10(4), 501–514.
UNDP (2003). Judicial independence in transitional countries. Washington, DC: UNDP.

C
United Nations (UN) Economic and Social Council (ECOSOC) (2006). Resolution on strengthening basic principles
ER
of judicial conduct, ECOSOC 2006/23.
Verma, J.S. (2010). Judicial independence: Is it threatened? First S. Govind Swaminadhan Memorial Lecture,
Madras High Court Bar, Chennai, India, 29 January 2010.
M

Woolman, S. and Bishop, M. (2008). Constitutional conversations. Pretoria: Pretoria University Law Press.
M
O

Dejo Olowu is Research Professor of Law, Faculty of Law, at the North West University (Mafikeng
C

Campus), Private Bag X 2046, Mmabatho 2735, South Africa.

R
FO
T
O
N

India Quarterly, 69, 2 (2013): 179–191

 SE
U
L
IA
C
ER
M
M
O
C
R
FO
T
O
N

View publication stats