It was my privilege to work with one of the world’s most eminent jurists Michael Kirby for some years on the Judicial Integrity Group, which consisted of Chief Justices and judges from various countries. We sat in many cities and received a vast range of materials bearing on this matter from different jurisdictions and legal systems. The experience and the thoroughness which Michael brought to bear upon this work were of considerable importance to us in achieving a universal code, which is now gaining wide acceptance, and has been adopted already as a model in several countries.
Kirby’s mastery of every detail and the way in which he marshalled all this information was quite remarkable. We are pleased also that ECOSOC has recommended it to all member states of the UN for adoption in their countries and that United Nations tribunals are already following it. If we have achieved such results, Michael Kirby has made a great contribution towards this end. It also gives me special pleasure to speak on this occasion in association with Michael Kirby because we have known each other for decades and shared the same interests in the development of the law. We have both sought hard to use the principles of international law to enrich and fertilize domestic law, to expand the frontiers of the law, to make law more relevant to social needs, and to explore neglected areas, such as the interface between science and the law. Indeed in the latter area, Kirby gave the Australian Law Reform Commission a position of world leadership, and he also provided a foreword to a book I wrote on the subject, titled The Slumbering Sentinels: Law and Human Rights in the Wake of Technology.
It must be remembered that in attempting to draft a universal code of judicial ethics, we had to bridge the differences that existed between various jurisdictions and in particular the gulf between the two great legal systems prevalent in the world today, the common law system and the civil law system.
These two systems take a very different view regarding the position of the judge in the hierarchy of the law. While the common law system places the judge on a pedestal with lawyers and jurists far behind, the civil law system puts the jurists even ahead of the judge in the hierarchy of the legal fraternity. Following from this difference in approach various differences result regarding the conduct and responsibilities of the judge. We were able, perhaps for the first time in legal history, to bridge this difference and achieve a universally accepted set of principles.
I do not need to go into the various details concerning the matters Michael has mentioned. These principles have also been elaborated upon in extensive commentaries on our draft, dealing with the principles of independence, impartiality, integrity, propriety, equality, competence and diligence, on which the draft is based. I would like, however, to add a few comments indicating how principles of judicial integrity and rectitude have been honoured from the very commencement of civilization.
As early as 1,500 BC the Pharaohs are recorded as having issued instructions to their chief justices, regarding the integrity of conduct expected of them. The instructions of King Thutmose III to Chief Justice Rekhmire are worth noting in this connection. Some of the observations made by the king to the judge are: that they should be mindful that the court is the support of the whole land, that it is an abomination of God to show partiality and that the judge was under the duty to act alike to those that are known and unknown.
Other ancient systems record the same principles. For example Kautilya in his famous treaties on the art of government (Arthasastra) noted the following principles required of judges in their conduct of cases. These were:
- The judge should not threaten, browbeat or unjustifiably silence one who appears before him
- He should not inquire into irrelevant matters
- He should not unnecessarily delay discharging his duties
- He should not unnecessarily postpone matters before him
- He should not give clues to witnesses deposing before him
It is remarkable how relevant these observations are, even in modern times. All this of course, goes back to the laws of Manu (circa 200 BC). A famous commentary on the laws of Manu is Narada’s around the 2nd century AD, in which he states that members of a royal court of Justice must be
- Thoroughly acquainted with the law
- Men of prudence
- Impartial towards friend and foe
The commentary goes on to make the telling observation that a fair opinion should be delivered, or the court of justice must not be entered at all. The judge who delivers an opinion contrary to justice is a sinner. And it is the duty of the judge to extract the dart of iniquity from the wound of the suitor that comes before him, failing which, the judge is a sinner. These ancient references provide a telling indication of the fact that the principle of the integrity of the judge is coeval with civilization itself. Whenever ancient people organized themselves into settled societies these principles emerged and were deeply respected, if not venerated.
In Christianity, we often lose sight of Christ’s very specific teaching in regard to the law. He spoke very strongly against excessive legalism, teaching that concentration on the letter of the law should not obscure one’s vision of the principles behind the law. This is a factor which judges would do well to bear in mind. Christ’s words to lawyers, that they have “omitted the weightier matters of the law, judgment, mercy, and faith” (Matthew 23:23), are particularly relevant to judges.
In Islam again, we have wonderful illustrations of the judge’s duty of impartiality. A famous episode in this context is that relating to the Caliph Omar, who had lent a suit of armour to a subject who was not returning it. The king rather than taking it back by force had to file an action against this subject for the recovery of the suit of armour. When the king entered the court as a litigant for this purpose, the judge in deference to the sovereign rose from his seat. The king thereupon decided that the judge was not discharging his judicial duties impartially because he was showing special deference to one litigant when both litigants should be treated fairly equally. Such was the high standard of impartiality which was expected of judges.
The Islamic system even went into minute psychological details regarding the judge’s mental attitude to their work, even stipulating that it was blameworthy for a judge to deliver a judgment when he was angry or hungry or in a physical state likely to trouble his mind. It was also laid down that the pomp and glory of the state official should not be permitted to overawe the judge and that impartiality was one of the pillars on which the dignity of the judge depended.
I come now to Buddhism. The noble eight fold path of Buddhism identifies eight principles which need to be followed in all human conduct. This is particularly useful when considering the judicial function, because each one of these has profound implications for the judicial process. I will take them in the following order:
- Right thought. This is relevant to the judicial function, because judges must have the right frame of mind in approaching the matter before them. They must not be swayed by prejudice or thought of self advancement and must bring the requisite knowledge and learning to bear on their task.
- Right speech. Judges must be extremely careful, both in the way they address witnesses, parties and lawyers and in the way they phrase their judgment. Carelessness in this regard can damage the dignity and impartiality of their office.
- Right action. Both in court and in the judgment itself the judge needs to take the correct action. Throwing one’s weight around in court, scolding witnesses and other unseemly behaviour would be excluded by this. The judgment itself would need to be carefully worded, paying due regard to every word used and its implications.
- Right livelihood. Judges must remember that the position they hold constitutes their livelihood and it must be protected and maintained with the utmost integrity. If the judge were to depart however slightly, from the principles of integrity required in discharging the duties of its judicial office, the judge would be deviating from the principles of right livelihood.
- Right effort. This means that the judge must put the necessary effort into his or her judicial work. Careful study of the evidence, of the relevant law and procedure and deep deliberation regarding the issues involved are all part of this effort.
- Right concentration. The judge must concentrate deeply on the immediate matter in hand, and all its nuances and implications. Writing a judgment is a work of great concentration.
- Right mindfulness. Concentration on the immediate matter on hand is not sufficient. There must also be a mindfulness of the effect the judgment would have on those affected by it. The judge, in writing a judgment, must be mindful of the impact of the judgment upon the parties as well as those who are closely affected.
- Right vision. Moving beyond concentration on the immediate judgment and its impact on those it affects, the judge must also consider the long term effects of what he or she decides. A judgment written today will have its effect for decades to come, and the judge should not be unmindful of the long term consequences.
Here in a nutshell are eight aspects of judicial duties, all of them having an intimate bearing on judicial ethics. These are a few religious and cultural perspectives in relation to the judicial process which it would be useful for us all to keep in mind. They show the universality and timelessness of the concern for complete integrity in the discharge of the judicial function.
These may be a useful supplement to Michael Kirby’s analysis of the Universal Principles of Judicial Integrity. It has given me much pleasure to make these observations as a sequel to the address you have been privileged to hear from one of the world’s outstanding judges and jurists.
(Judge Weeramantry will be chief guest at the 11th Journalism Awards for Excellence Night next Tuesday)