Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region

Beijing, 19 August 1995

 

Preamble to Statement of Principles of the Independence of the Judiciary

 

Whereas the Charter of the United Nations the peoples of the world affirm, inter alia, their determination to establish conditions under which justice can be maintained to achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms without any discrimination;

 

Whereas the Universal Declaration of Human Rights enshrines in particular the principles of equality before the law, of the presumption of innocence and of the right to a fair and public hearing by a competent, independent and impartial tribunal established by the law;

 

Whereas the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights both guarantee the exercise of those rights, and in addition the Covenant on Civil and Political Rights further guarantees the right to be tried without undue delay;

 

Whereas the organisation and administration of justice in every country should be inspired by those principles, and efforts should be undertaken to translate them fully into reality;

 

Whereas rules concerning the exercise of judicial office should aim at enabling judges to act in accordance with those principles;

 

Whereas the 6th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, by its resolution 16, called upon the Committee on Crime Prevention and Control to include among its priorities the elaboration

of guidelines relating to the independence of judges and the selection, professional training and status of judges and prosecutors;

 

Whereas the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, at its meeting in Milan, Italy, from 26 August to 6 September 1985, adopted the Basic Principles on the Independence of the Judiciary by consensus;

 

Whereas the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders recommended the Basic Principles on the Independence of the Judiciary for national, regional and interregional action and implementation, taking into account the political, economic, social and cultural circumstances and traditions of each country;

 

Whereas on 17-18 July 1982 the LAWASIA Human Rights Standing Committee met in Tokyo, Japan and in consultation with members of the judiciary formulated a Statement of Principles on the Independence of the Judiciary in the LAWASIA Region (“the Tokyo Principles”) in the context of the history and culture of the region;

 

Whereas the 5th Conference of Chief Justices of Asia and the Pacific at Colombo, Sri Lanka on 13-15 September 1993 recognised that it was desirable to revise the Tokyo Principles in the light of subsequent developments with a view to adopting a clear statement of principles of the independence of the judiciary, and considered a first draft of a Revised Statement of Principles on the Independence of the Judiciary and requested the Acting Chairman of the Judicial Section of LAWASIA to prepare a second draft of the Revised Statement taking into account the views expressed at the 5th Conference of the Chief Justices and comments and suggestions to be made by the Chief Justices or their representatives; and

 

Noting that the 6th Conference of Chief Justices of Asia and the Pacific was held in Beijing in conjunction with the 14th LAWASIA Biennial, the primary object of which is:

 

“To promote the administration of justice, the protection of human rights and the maintenance of the rule of law within the region.”

 

The 6th Conference of the Chief Justices of Asia and the Pacific:

 

Adopts the Statement of Principles on the Independence of the Judiciary contained in the annex to this resolution to be known as the Beijing Statement of Principles on the Independence of the Judiciary in the LAWASIA Region.

 

 

 

Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region

(As Amended at Manila, 28 August 1997)

 

INDEPENDENCE OF THE JUDICIARY

 

 1. The Judiciary is an institution of the highest value in every society.

 

 2. The Universal Declaration of Human Rights (Art. 10) and the International

Covenant on Civil and Political Rights (Art. 14(1)) proclaim that everyone should be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. An independent judiciary is indispensable to the implementation of this right.

 

 3. Independence of the Judiciary requires that;

 

 a) The judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source; and

 

 b) The judiciary has jurisdiction, directly or by way of review, over all issues of a justiciable nature.

 

 4. The maintenance of the independence of the judiciary is essential to the attainment of its objectives and the proper performance of its functions in a free society observing the rule of law. It is essential that such independence be

guaranteed by the State and enshrined in the Constitution or the law.

 

 5. It is the duty of the judiciary to respect and observe the proper objectives and functions of the other institutions of government. It is the duty of those institutions to respect and observe the proper objectives and functions of the judiciary.

 

 6. In the decision-making process, any hierarchical organisation of the judiciary and any difference in grade or rank shall in no way interfere with the duty of the judge exercising jurisdiction individually or judges acting collectively to pronounce judgement in accordance with Article 3(a). The judiciary, on its part, individually and collectively, shall exercise its functions in accordance with the Constitution and the law.

 

 7. Judges shall uphold the integrity and independence of the judiciary by avoiding impropriety and the appearance of impropriety in all their activities.

 

 8. To the extent consistent with their duties as members of the judiciary, judges, like other citizens, are entitled to freedom of expression, belief, association and assembly.

 

 9. Judges shall be free, subject to any applicable law, to form and join an association of judges to represent their interests and promote their professional training and to take such other action to protect their independence as may be appropriate.

 

OBJECTIVES OF THE JUDICIARY

 

 10. The objectives and functions of the judiciary include the following:

a) To ensure that all persons are able to live securely under the rule of law;

b) To promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and

c) To administer the law impartially among person and between persons and the State.

 

 

APPOINTMENT OF JUDGES

 

 11. To enable the judiciary to achieve its objectives and perform its functions, it is essential that judges be chosen on the basis of proven competence, integrity and independence.

 

 12.The mode of appointment of judges must be such as will ensure the appointment of persons who are best qualified for judicial office. It must provide safeguards against improper influences being taken into account so that only persons of competence, integrity and independence are appointed.

 

 13. In the selection of judges there must no discrimination against a person on the basis of race, colour, gender, religion, political or other opinion, national or social origin, marital status, sexual orientation, property, birth or status, expect that a requirement that a candidate for judicial office must be a

national of the country concerned shall not be considered discriminatory.

 

 14. The structure of the legal profession, and the sources from which judges are drawn within the legal profession, differ in different societies. In some societies, the judiciary is a career service; in others, judges are chosen from the practising profession. Therefore, it is accepted that in different societies, difference procedures and safeguards may be adopted to ensure the proper appointment of judges.

 

 15. In some societies, the appointment of judges, by, with the consent of, or after consultation with a Judicial Services Commission has been seen as a means of ensuring that those chosen judges are appropriate for the purpose. Where a Judicial Services Commission is adopted, it should include representatives the higher Judiciary and the independent legal profession as a means of ensuring that judicial competence, integrity and independence are maintained.

 

 16. In the absence of a Judicial Services Commission, the procedures for appointment of judges should be clearly defined and formalised and information about them should be available to the public.

 

 17. Promotion of judges must be based on an objective assessment of factors such as competence, integrity, independence and experience.

 

 

TENURE

 

 18. Judges must have security of tenure.

 

 19. It is recognised that, in some countries, the tenure of judges is subject to confirmation from time to time by vote of the people or other formal procedures.

 

 20. However, it is recommended that all judges exercising the same jurisdiction be appointed for a period to expire upon the attainment of a particular age.

 

 21. A judge’s tenure must not be altered to the disadvantage of the judge during his or her term of office.

 

 22. Judges should be subject to removal from office only for proved incapacity, conviction of a crime, or conduct that makes the judge unfit to be a judge.

 

 23. It is recognised that, by reason of differences in history and culture, the procedures adopted for the removal of judges may differ in different societies.

Removal by parliamentary procedures has traditionally been adopted in some societies. In other societies, that procedure is unsuitable; it is not appropriate for dealing with some grounds for removal; it is rarely, if ever, used; and its use other than for the most serious of reasons is apt to lead to misuse.

 

 24. Where parliamentary procedures or procedures for the removal of a judge

by vote of the people do not apply, procedures for the removal of judges must be under the control of the judiciary.

 

 25. Where parliamentary procedures of procedures for the removal of a judge by vote of the people do not apply and it is proposed to take steps to secure the removal of a judge, there should, in the first instance, be an examination of the reasons suggested for the removal, for the purpose of determining whether formal proceedings should be commenced only if

the preliminary examination indicates that there are adequate reasons for taking them.

 

 26. In any event, the judge who is sought to be removed must have the right to a fair hearing.

 

 27. All disciplinary, suspension or removal proceedings must be determined in accordance with established standards of judicial conduct.

 

 28. Judgements in disciplinary proceedings, whether held in camera or in public, should be published.

 

 29. The abolition of the court of which a judge is a member must not be accepted as a reason or an occasion for the removal of a judge. Where a court is abolished or restructured, all existing members of the court must be reappointed to its replacement or appointed to another judicial office of equivalent status and tenure. Members of the court for whom no alternative position can be found must be fully compensated.

 

 30. Judges must not be transferred by the Executive from one jurisdiction or function to another without their consent, but when a transfer is in pursuance of a uniform policy formulated by the Executive after due consultation with the judiciary, such consent shall not be unreasonably withheld by an individual judge.

 

JUDICIAL CONDITIONS

 

 31. Judges must receive adequate remuneration and be given appropriate terms and conditions of service. The remuneration and conditions of service

of judges should not be altered to their disadvantage during their term of office, except as part of a uniform public economic measure to which the judges of a relevant court, or a majority of them, have agreed.

 

 32. 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.

 

 

JURISDICTION

 

 33. The judiciary must have jurisdiction over all issues of a justiciable nature and exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.

 

 34. The jurisdiction of the highest court in a society should not be limited or restricted without the consent of the members of the court.

 

JUDICIAL ADMINISTRATION

 

 35. The assignment of cases to judges is a matter of judicial administration over which ultimate control must belong to the chief judicial officer of the relevant court.

 

 36. The principal responsibility for court administration, including appointment, supervision and disciplinary control of administrative personnel and support staff must vest in the judiciary, or in a body in which the judiciary is represented and has an effective role.

 

 37. The budget of the courts should be prepared by the courts or a competent authority in collaboration with the courts having regard to the needs of the independence of the judiciary and its administration. The amount allotted should be sufficient to enable each court to function without an excessive workload.

 

RELATIONSHIP WITH THE EXECUTIVE

 

 38. Executive powers which may affect judges in their office, their remuneration or conditions or their resources, must not be used so as to threaten or bring pressure upon a particular judge or judges.

 

 39. Inducements or benefits should not be offered to or accepted by judges if they affect, or might affect, the performance of their judicial functions.

 

 40. The Executive authorities must at all times ensure the security and physical protection of judges and their families.

 

 

RESOURCES

 

 41. It is essential that judges be provided with the resources necessary to enable them to perform their functions.

 

 42. Where economic constraints make it difficult to allocate to the court system facilities and resources which judges consider adequate to enable them to perform their functions, the essential maintenance of the rule of law and the protection of human rights nevertheless require that the needs of the judiciary and the court system be accorded a high level of priority in the allocation of resources.

 

 

EMERGENCY

 

 43. Some derogations from independence of the judiciary may be permitted in times of grave public emergency which threaten the life of the society but only for the period of time strictly required by the exigencies of the situation and under conditions prescribed by law, only to the extent strictly consistent with internationally recognised minimum standards and subject to review by the courts. In such times of emergency, the State shall endeavour to provide that civilians charged with criminal offences of any kind shall be tried by ordinary civilian courts and detention of person administratively without charge shall be subject to review by courts of other independent authority by way of habeus corpus or similar procedures.

 

 44. The jurisdiction of military tribunals must be confined to military offences. There must always be a right of appeal from such tribunals to a legally qualified appellate court of tribunals to a legally qualified appellate court or tribunal or other remedy by way of an application for annulment.

 

 

It is the conclusion of the Chief Justices and other judges of Asia and Pacific listed below that these represent the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary.

 

SIGNATORIES AT BEIJING, 19 AUGUST 1995

 

The Hon Sir Gerard Brennan AC KBE

Chief Justice of Australia

 

The Hon Mr Justice A. T. M. Afzal

Chief Justice of Bangladesh

 

HE Mr Wang Jingrong

Vice-President, Supreme People’s Court of the

People’s Republic of China

(Representing HE President Ren Jianxin,

President of the Supreme People’s Court)

 

The Hon Sir Ti Liang Yang

Chief Justice of Hong Kong, SAR

 

The Hon Shri Justice S. C. Agrawal

Justice of the Supreme Court of India

(Representing The Hon Mr Justice A. M.

Ahmadi, Chief Justice of India)

 

The Hon Justice S. H. Soerjono

Chief Justice of Indonesia

 

The Hon Yun Kwan

Chief Justice of the Republic of Korea

 

The Hon D. Dembereltseren

Chief Justice of Mongolia

 

The Hon U Aung Toe

Chief Justice of the Supreme Court of The

Union of Myanmar (Burma)

 

The Rt Hon Mr Justice Biswanath Upadhyaya

Chief Justice of Nepal

 

Monsieur Le Premier Président Olivier Aimot

Premier Président of the Court of Appeal of

New Caledonia

 

The Rt Hon Sir Thomas Eichelbaum GBE

Chief Justice of New Zealand

 

The Hon Mr Justice Sajjad Ali Shah

Chief Justice of Pakistan

 

The Hon Sir Arnold K. Amet

Chief Justice of Papua New Guinea

 

The Hon Andres R. Narvasa

Chief Justice of the Philippines

 

The Hon Justice Yong Pung How

Chief Justice of Singapore

 

The Hon Mr Justice P. R. P. Perera

Justice of the Supreme Court of Sri Lanka

(Representing The Hon Mr Justice G. P. S. De

Silva, Chief Justice of Sri Lanka)

 

The Hon Charles Vaudin D’Imecourt

Chief Justice of Vanuatu

 

The Hon Mr Justice Pham Hung

Chief Justice of Vietnam

 

Tiavaasue Falefatu Maka Sapolu

Chief Justice of Western Samoa

 

 

SUBSEQUENT SIGNATORIES:

 

The Hon Sir Timoci Tuivaga

Chief Justice of Fiji

 

The Hon Kim Yong Joon

President of the Constitutional Court of Korea

 

The Hon Tun Dato Sri Mohd Eusoff b. Chin

Chief Justice of Malaysia

 

The Hon Justice V Allear

Chief Justice of the Republic of the Seychelles

 

The Hon Sir John Muria

Chief Justice of the Solomon Islands

 

The Hon Nigel Hampton

Chief Justice of Tonga

 

 

 

SIGNATORIES AT MANILA, 28 AUGUST 1997:

 

The Hon Richard Brunt Lussick

Chief Justice of the Republic of Kiribati

 

The Hon Daniel Cadra

Chief Justice of the High Court

(Representing the Hon Allan Fields Chief

Justice of the Marshall Islands)

 

Chief Justice Sir Gaven Donne

Chief Justice of Nauru and Tuvalu

 

Chief Justice Vyacheslav M. Lebedev

Chief Justice of the Supreme Court Russian

Federation

 

SUBSEQUENT SIGNATORIES:

 

The Hon Toru Miyoshi

Chief Justice of Japan

(Subject to reservation in attached Statement,

as regards Article 9.)

 

The Hon Justice Sadka Mokkamakkul

President of the Supreme Court of Thailand

 

 

 

Supreme Court of Japan, Tokyo

 

THE OPINION OF THE CHIEF JUSTICE OF JAPAN

 

Concerning “Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region”

 

The independence in exercising the judicial function is firmly guaranteed to all the judges in Japan by the Constitution along with their compensation and status. This constitutional guarantee turns it unnecessary for the judges to make efforts to improve their working and economic conditions unlike workers in other professions, standing on an equal footing with their employers, who need to demand improvement against them. There are, therefore, no rights for the judges to form or join a labour union.

 

On the other hand, regarding the question of whether or not the judges are able to “form and join an association of judges to represent their interests and promote their professional training and to take such other action to protect their independence as may be appropriate” other than a labour union, it is understood as follows. The judges are especially required to be politically neutral to perform their duties, and it is also demanded that not only trial and judgement should be fair but also attitudes of judges must be relied on to be fair by the general public. Because of these conditions, the judges are not permitted to form or join an association that takes on a political coloration and arouses people’s suspicion about fairness. And it may cause danger of raising a doubt about political neutrality that the judges, who are firmly guaranteed their status and independence as mentioned before and enjoy their, so to speak, special status, “form and join an association of judges to represent their interests and promote their professional training and to take such other action to protect their independence as may be appropriate.” To take into consideration the abovementioned factors, it is understood that there are some cases where those actions are deemed undesirable.

 

On the basis of the understanding that Article 9 of the Statement is not contrary to the law and system that are mentioned above, I express my agreement to “BEIJING STATEMENT OF PRINCIPLES OF THE INDEPENDENCE OF THE JUDICIARY IN THE LAWASIA REGION.”

 

 

 

Source: LAWASIA website - www.lawasia.asn.au