Policy Paper on the Right to Rule of Law

8/9/2019 Policy Paper on the Right to Rule of Law

http://slidepdf.com/reader/full/policy-paper-on-the-right-to-rule-of-law 1/80

District Multi-Stakeholders Forum

On

Constitutional Reform and Peaceful Coexistence

Policy Paperon

The Right to Rule of Law



2

Policy Recommendations of the District Multi-Stakeholders Forum on

Constitutional Reform and Peaceful Coexistence

The National Democratic Institute (NDI) is a nonprofit, nonpartisan, nongovernmental organization thatresponds to the worldwide quest for popular civic participation, open and competitive political systems,

and representative and accountable government. NDI and its local partners work to establish andstrengthen democratic institutions and practices by building political and civic organizations,safeguarding elections, and promoting citizen participation, openness and accountability in government.

With staff members and volunteer political practitioners from more than 100 nations, NDI brings together

individuals and groups to share ideas, knowledge, experiences and expertise. Partners receive broadexposure to best practices in international democratic development that can be adapted to the needs of

their own countries. NDI’s multinational approach reinforces the message that while there is no single

democratic model, certain core principles are shared by all democracies.

In late 2008, NDI commenced a program to promote multi-sector dialogue to build capacity and

consensus on constitutional reform and peaceful coexistence. District Multi-Stakeholders Forums(DMSFs) were created in eight districts of the South, Central and Eastern Provinces with the participation

of political party leaders, representatives of professional associations and civil society organizations.

During the initial meetings in early 2009, participants identified specific constitutional and governance

issues that they believed should be addressed through policy, legislative and institutional reforms topromote, consolidate and sustain democracy and good governance. Comprehensive dialogues were

promoted on the following issues:

1. The right to Representation and Participation

2. The right to Rule of Law

3. The Right to Transparent Governance

4. The right to Effective, Efficient, Responsive and Accountable Governance

5. The right of Women to Equality, Representation and Participation

The recommendations formulated by the DMSF are intended to initiate dialogues through constructive

engagement with policy-level stakeholders, political and civil leaders and others responsible in promotingdemocratic governance in the country. The recommendations for policy reform on the Right to Rule of

Law are presented herewith with the kind request of the members of the DMSF to H.E. President

Mahinda Rajapaksa, Cabinet Ministers, Leader of the Opposition, leaders of all political parties,Parliamentarians, Members of the Provincial Councils, Heads of relevant state institutions and the general

public to kindly come forward with commitment, enthusiasm and solidarity to promote informed dialogue

based on these recommendations in order to reach multi-party consensus in the search for a shared future

in which everyone will be accepted and respected as equals in an environment of good governance withdevelopment and peace and free of discriminations, fear, intimidation and violence.

The Members of the District Multi-Stakeholders Forum on Constitutional Reform and

Peaceful Coexistence

August 2010



3

District Multi-Stakeholders Forum for Constitution and Peaceful Coexistence

POLICY PAPER ON THE RIGHT TO RULE OF LAW

Introduction

“All are equal before the law and are entitled without any discrimination to equal protection

of the law. All are entitled to equal protection against any discrimination in violation of this

Declaration and against any incitement to such discrimination.” -Article 7 of the Universal

Declaration of Human Rights adopted by the UN on 10 December 1948.

Rule of law is the first issue in the “Declaration of Democratic Values” highlighted by the seven

heads of states of the major industrial democracies in the following statement:

“We believe in a rule of law which respects and protects without fear or favor the rights and

liberties of every citizen and provides the setting in which the human spirit can develop in

freedom and dignity”

Rule of law has been advocated and endorsed by government heads from a range of societies,cultures and economic and political systems. The primary reasons they articulate their support

might differ, some in the interest of individual freedom, some in the preservation of order, manyin the furtherance of economic development, but all identify it as essential. This apparent

unanimity in support of the rule of law is a feat unparalleled in history. Government officialsworldwide advocate the rule of la. Government commitment to the rule of law has been an

accepted measure worldwide to assess the legitimacy of governments.

It is also clear that there are contrasting perceptions of what the rule of law means. Some believethat the rule of law includes protection of individual rights. Some believe that democracy is part

of the rule of law. Some believe that the rule of law is purely formal in nature, requiring onlythat laws be set out in advance in general, clear terms, and be applied equally to all. Others

assert that the rule of law encompasses the social, economic, educational, and cultural conditionsunder which women and men’s legitimate aspirations and dignity may be realized.

Dissidents point out that the authoritarian governments that claim to abide by the rule of law

routinely understand this phrase in oppressive terms. Some leaders and governments in theseauthoritarian or repressive regimes want rule by law, not rule of law. The difference is that

under the rule of law, the law is preeminent and can serve as a check against all abuses of powerof government executives. Under the rule by law, the law can serve as a mere tool for a

government that suppresses (human rights and freedoms), in a legalistic fashion.

Rule of law is considered as an important attribute to promote transparent and accountable good

governance. In 1959, an international gathering of over 185 judges, lawyers, and law professorsfrom 53 countries, meeting in New Delhi and speaking as the International Commission of

Jurists, made a declaration as to the fundamental principle of the rule of law. This was the



4

“Declaration of Delhi on the Rule of Law in a Free Society”. They declared that the rule of lawimplies certain rights and freedoms, that it implies an independent judiciary, and that it implies

social, economic and cultural conditions conducive to human dignity. (annex 1)

The District Multi-Stakeholders Forums conducted a series of dialogues on the status of rule of

law in Sri Lanka. Participants represented the diverse ethnic, religious, economic and politicalgroups in the country. The following recommendations were made, representing issues that mustbe addressed as a priority in order to ensure rule of law.

Background

Under the current Constitutional arrangement in Sri Lanka the balance of power weighs heavilyin favor of the political executive. The Constitution grants extensive executive powers to the

post. These powers include, inter alia, the authority to appoint the Prime Minister, to appoint theCabinet of Ministers and to make judicial appointments. In addition, Article 70 of the

Constitution affords the President the power to prorogue Parliament. This power can be open to

misuse for narrow political purposes. In 2001, this occurred after a no confidence motion wasfiled against the incumbent government at the time. The Constitution also provides that thePresident is immune from legal proceedings in respect of both public and private acts during the

period of office. The President serves as head of state, head of the executive, head of thegovernment and commander in chief of the armed forces. He or she can also assign himself or

herself any function and can also declare a referendum even on bills that have been rejected bythe parliament.

The legislature, judiciary and police, who in theory should work integrally within the democratic

framework to uphold human rights and rule of law have been weakened by poor governance andexternal influences, preventing them from functioning effectively. The public service, which at

one time was independent, has now been infused with a large number of political appointees andhas lost independence and credibility. At the moment there is no single institution that

commands widespread credibility. Appointments to public institutions have been tainted bypolitical bias. The unreliability of key institutions coupled with uneven powers exercised by the

executive has dyer implications for the rule of law in the country.

The 17th

Amendment to the Constitution was introduced in an attempt to depoliticize the publicservice including the appointment of judges and oversight mechanisms for institutions such as

the police. The Amendment creates a Constitutional Council (CC), an inclusive body with thepower to make recommendations for appointments or in some cases approve appointments to

key public offices. The objective of the CC was to ensure non-partisan appointments to keyinstitutions in the country. This was expected to help ensure transparency and foster greater

public confidence in the institutions themselves. Under the 17 th Amendment, the President isresponsible for making appointments, however he or she cannot do so without the

recommendation of the CC. However, the CC has ceased to function and there appears to be littlepolitical will to re-activate it. Since 2005 the system in place prior to the 17th Amendment has

continued, whereby appointments are made without external scrutiny in the public service, the appellate judiciary, the Human Rights Commission and the National Police Commission.



5

The continued deterioration and disregard for human rights principles as a priority commitmentto be expressed and guaranteed through the constitutional and legislative framework in the

country and the weakening of institutions such as the National Human Rights Commissionthrough political interference has resulted in a series of setback for Sri Lanka at the international

level.

International Standards and the Obligations of the Sri Lankan Government

The United Nations defines the rule of law as a principle of governance in which all persons,

institutions and entities, public and private, including the State itself, are accountable to laws thatare publicly promulgated, equally enforced and independently adjudicated, and which are

consistent with international human rights norms and standards. It requires, as well, measures toensure adherence to the principles of supremacy of law, equality before the law, accountability to

the law, fairness in the application of the law, separation of powers among the three branches of the state- executive, legislature and judiciary, public participation in decision-making, legal

certainty, avoidance of arbitrariness and procedural and legal transparency.

The World Justice Project, an organization specializing in the promotion of rule of law, bases itsdefinition upon 16 factors and 68 sub-factors, organized under the following set of four

principles, or bands

1. The government and its officials and agents are accountable under the law;2. The laws are clear, publicized, stable and fair, and protect fundamental rights, including

the security of persons and property;3. The process by which the laws are enacted, administered and enforced is accessible, fair

and efficient;4. Access to justice is provided by competent, independent, and ethical adjudicators,

attorneys or representatives, and judicial officers who are of sufficient number, haveadequate resources, and reflect the makeup of the communities they serve.

The Universal Declaration of Human Rights (UDHR) imposes a common standard of achievement for all peoples and nations. Though not legally binding, it exerts a moral and

political influence over the state. The International Covenant on Civil and Political Rights(ACCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)

elaborate on the rights and freedoms recognized in the UDHR and bind states to implement theprovisions in the covenants. Sri Lanka has ratified the core international human rights

instruments, including: the

Convention on the Prevention and Punishment of the Crime of Genocide; the International

Convention on the Prevention and Punishment of all forms of Racial Discrimination; the

International Covenant on Civil and Political Rights (ICCPR) and both of its Optional Protocols;the International Covenant on Economic, Social and Cultural Rights (ICESCR) and its Optional

Protocol; the Convention on the Rights of the Child (CROC) and both of its Optional Protocols;the Convention on the Elimination of all forms of Discrimination against Women (CEDAW) and

its Optional Protocol; the Convention against Torture and other Cruel, Inhuman and Degrading

Treatment or Punishment (CAT) and its Optional Protocol; the Convention on the non-



6

applicability of statutory limitations to war crimes and crimes against humanity; the

International Convention on the Suppression and Punishment of the Crime of Apartheid; the

International Convention against Apartheid in Sports; the International Convention

on the Protection of the Rights of All Migrant Workers and Members of their Families; the

Convention on the Rights of Persons with Disabilities and its Optional Protocol; and the

International Convention for the Protection of all Persons from Enforced Disappearance as wellas the UN Guidelines on the Role of Prosecutors, basic Principles on the Role of Lawyers, Basic

Principles on the Use of Force and Firearms by Law Enforcement Officials (Relevant text is

included as annex 2)

Having ratified these conventions that protect and promote human rights the State has an

obligation to enact laws locally to actualize its commitment.

Policy Recommendations

Supremacy of the Law

There have been innumerable examples in Sri Lanka of the law being circumvented as a result of intimidation, political manipulation, bribery or other corrupt practices. There is a long-standing

culture of impunity among high level officials and many act outside the boundaries of the law.Political power renders individuals above the law. One example is the use of Article 34 of the

Constitution which gives the President authority to pardon any offender convicted of anyoffence. Clearly, this can be open to grave misuse without any clear parameters that define how

and in what circumstances this power can and should be used. Misuse of such an authority canhave far-reaching implications for the rule of law in the country where, in the worst case,

political patronage exempts individuals for criminal activities for which they have beenconvicted.

Under the current Constitutional arrangements, the President enjoys broad powers with fullimmunity while in office and can exercise almost absolute authority without censure. In order forrule of law to be upheld, it must apply to all members of the society and must be adhered to by

all members of society. The Executive Presidency has marginalized the legislature and made it of limited relevance in the country’s scheme of constitutional government. The system of

government is so heavily weighted in favor of the President that today Parliament plays only amarginal role both in a de facto and de jure sense.

The use of Emergency Regulations and the Prevention of Terrorism Act should be limited to

clearly defined parameters. This is to avoid abuses that may weaken the rule of law in thecountry. There have been, over the past decades, a number of cases where the Emergency

Regulations have been manipulated to pursue partisan interests in addressing issues of governance and policy. Clear parameters and guidelines within Nation Security Legislation

should be set out.

The ability for the three instruments of state to work cohesively and autonomously to provide

checks and balances that will ensure rule of law is upheld is paramount in a democratic society.A clear separation of powers for the executive, legislature and judiciary that allows each arm to

operate without interference and which has in-built mechanisms to ensure accountability-



7

through enforceable internal controls and through an independent external watchdog that reportsto parliament is essential.

External, politically motivated interference in the functioning of the legislative and judicialwings of the administration not only destroys independence but undermines credibility of the

rule of law. Constitutional provisions should safeguard the right to scrutinize laws and expressdivergent views without fear of retribution. At present there is limited if any protection for

members of the legislature or judiciary. Arbitrary transfers, dismissals and other punitivemeasures are commonplace within the Sri Lankan administration, effectively strangling the

proper functioning of systems which should work together to uphold the rights of the citizens of the country.

According to the Constitution an MP who is expelled from his or her party as a result of crossing

the floor or voting against a bill presented by his/her own government must be expelled fromParliament unless the Supreme Court or a Select Committee of Parliament decides otherwise.

Further, the executive has the right to call for a referendum on bills even if they have beenrejected by Parliament. This severely undermines the Parliament while strengthening the powers

of a popularly elected President.

A strong Parliamentary oversight system could potentially play an important role in enhancingtransparency, ensuring that public power is not abused and in delivering accountability. The

Committee on Public Enterprises (COPE) and the Public Accounts Committee (PAC), a multi-party committees set up under Standing Orders 125 and 126, are important ways in which

Parliament plays its role as the controller of public finance. Further strengthening oversightthrough the formation of empowered, dynamic multi-party committees is for oversight would

engender greater accountability and foster increased public confidence in and respect for rule of law.

Recommendations:

1. Compliance of all political and administrative executives, irrespective of their positions,to act within the confines of the rule of law must be ensured

2. Constitutional reform should enable much stronger parliamentary control of government

as against the present constitutional system of a strong presidential executivegovernment.

3. The role of the courts and the power of judicial review must also be strengthened. At

present, the Supreme Court can determine whether a Parliamentary bill is consistent withthe principles of the Constitution, however this is only pre-enactment. The judiciary

cannot assess the compliance of bills that have already been passed in terms of theircompliance with the constitution or indeed, according to standards of international law

and human rights instruments.

4. Appointments to the independent institutions should also be free of political bias and bebased on merit. If the state is to be de-politicized appointments to the public service must

be based on merit and need and must be scrutinized by an independent body. Politicians



8

should not be permitted to appoint family members and friends to positions of publicpower.

Independence and impartiality of Judges

The UN Basic Principles on the Independence of the Judiciary lay out the requisite of independence in the first Principle: “The independence of the judiciary shall be guaranteed by

the State and enshrined in the Constitution or the law of the country. It is the duty of allgovernmental and other institutions to respect and observe the independence of the judiciary”.

The full text of the UN Basic Principles on the Independence of the Judiciary is included as anannexure (see annex 2)

The UN Commission on Human Rights has called upon all Governments to “respect and

uphold the independence of judges and lawyers and, to that end, to take effective legislative,law enforcement and other appropriate measures that will enable them to carry out their

professional duties. From the perspective of their personal independence, it is crucial that judges are not subordinated hierarchically to the executive or legislative, nor that they are civil

employees of these two powers. One of the fundamental requirements of judicial independenceis that judges at all levels should be officers of the judiciary and not subordinate or accountable

to other branches of government, especially the executive.

Judicial independence is asserted internationally in the Universal Declaration of Human Rightsand in the International Covenant on Civil and Political Rights, the UN Basic Principles on the

Independence of the Judiciary as well as other regional instruments. The Sixth Conference of Chief Justices of Asia and the Pacific (Beijing) in 1996 adopted the Statement of the Principles

on the Independence of the Judiciary (see annex 2). Sri Lanka was represented at the

Conference and voluntarily accepted the principles. For a trial to be fair, the judge or judgessitting on the case must be independent. International human rights instruments refer to a fairtrial by “an independent and impartial tribunal”. The UN Human Rights Committee has

asserted that the right to an independent and impartial tribunal is “an absolute right that maysuffer no exception”. Even though a person’s right to a fair trial may be respected in a

particular case when a judge is independent, a State would be in breach of its internationalobligations if the judiciary were not an independent branch of power. Therefore, in this

context, independence refers both to the individual judge as well as to the judiciary as a whole.

The Sri Lankan Constitution guarantees the independence of the judiciary in Article 107, whichprovides for the removal of judges of the Supreme Court and Court of Appeal upon an order of

the President supported by a majority of Parliament on the grounds of ‘proven misbehavior orincapacity’. Chapter XV of the Constitution contains further provisions relating to the judiciary

including the establishment of courts, public sittings, salaries of judges, the performance of duties and functions by judges, the appointment, removal and disciplinary control of judges, the

Judicial Services Commission (JSC), and the jurisdiction, rules and Registry of the SupremeCourt and Court of Appeal. The widespread lack of adherence to laws that would protect theindependence of the judiciary has had a dramatic effect on the functioning of the judiciary, and

has been extensively outlined in two reports of the International Bar Association (IBA) (see



9

annex 3 for the executive summary of the first report and the website of the IBA for fullreports).

The reports of the IBA point to a reluctance of the judiciary on the whole to address issues

relating to human rights, including cases of extra-judicial killings, the predominance of under-

trained, underpaid judges without a secure footing in terms of housing and pensions coupled withthe politicized nature of the judiciary in Sri Lanka are a barrier to the execution of justice.

The mechanism for the appointment of judges is often a matter of controversy. Many believe thatpoliticians are only interested in appointing judges who will do their bidding. Under the

Constitution, the highest court is the Supreme Court, headed by a chief justice and between sixand ten associate justices. Supreme and High Court justices are appointed by the president.

Superior Court justices can be removed on grounds of incompetence or misdemeanor by amajority of Parliament, whereas High Court justices can be removed only by a judicial service

commission consisting of Supreme Court justices. Appointments of higher judiciary normallytakes place based on seniority, although there is no fixed set of requirements. In a number of

countries, such as Australia and Spain, there is an increasing emphasis on diversifying the judiciary to better reflect the composition of society. This including attempts to ensure gender

and ethnic diversity on the bench. At a minimum a clearly defined and transparent selectioncriteria should be in place to guide judicial appointments.

The International Bar Association Report of 2001 recommended that appointments should:

1. Follow a rule of seniority in appointments to the higher judiciary except in cases where theconstitutional council makes a public finding that compelling reasons exist for declining to

promote a judge.

2. Place a moratorium on the promotion of officials from the attorney general’s office to the

higher judiciary, permitting appointments from the attorney general’s office only after there isnumerical balance between career-judge appointees and appointees from the private bar on the

one hand, and members of the attorney general’s staff on the other in those courts.

The salaries, security of tenure and conditions of appointment of judges should be such as to

attract the best candidates for a judicial career. The UN Basic Principles on the Independence of the Judiciary oblige member states to respect rigid conditions of service and tenure for judges,

including specifically:

National laws shall adequately secure the term to be served by judges, their security,adequate remuneration, conditions of service, pensions and the age of retirement.

Judges shall have guaranteed tenure, subject to removal for retirement or other factors

which render a judge unfit to discharge his or her duties. Any complaints filed against a judge shall be processed expeditiously and fairly under an

appropriate procedure.

There must be adequate security and benefits for the judiciary so as to prevent the prevalence of bribery and corruption on the bench. Financial disclosure by judges is recognized in developed

countries as a useful tool for policing the judiciary to protect against corruption in the form of illicit enrichment and conflicts of interest. (See annex 4) To increase independence and security,



10

the practice of appointing retired judges to state or government positions should be abolished andan appropriate pension scheme should be adopted that will support an independent retirement.

The Constitution provides that salaries of Supreme Court and Court of Appeal judges shall bedetermined by Parliament. Other judicial salaries are controlled through the JSC. Salary scales

for judges must be defined in such a way as to be equitable and to adequately compensate their

service.

Judicial Service Commission

In a landmark development, chief justices drawn from a variety of countries drafted and adopted

the Bangalore Principles of Judicial Conduct (2002). The principles assert that judges should be

accountable for their conduct to appropriate institutions established to maintain judicial

standards, which are themselves independent and impartial. In the European context, there are a

number of major instruments in this field. Among them are The Judges’ Charter in Europe, a

Recommendation on the Independence, Efficiency, and Role of Judges made by the Council of

Europe, and the European Charter on the Statute for Judges adopted by participants at a

multilateral meeting in 1998.

Article 111D of the Constitution incorporated by the 17th

Amendment which came into operation

on October 3rd, 2001 provides for the establishment of the Judicial Service Commission (JSC)

consisting of the Chief Justice (as Chairman) and two other Judges of the Supreme Court

appointed by the President. According to Article 41C of the Constitution (incorporated by the

17th

Amendment) no appointment may be made by the President unless such appointment has

been approved by the Constitutional Council upon a recommendation made to the Council by the

President. Appointments are for a period of three years. Removal of any member is by the

President, on the recommendation of the Constitutional Council, for cause assigned.

The JSC has responsibility for the appointment, promotion, discipline, transfer and dismissal of

all judges, excluding those in the Court of Appeal and Supreme Court. The Commissioncomprises the Chief Justice, who sits as ex officio chair, and two other Supreme Court judges

appointed by the President. The JSC has the authority to make any provision for such matters asare necessary or expedient for the discharging of its duties. This includes the power to adopt

rules of procedure on the recruitment and appointment of judges. In addition, the JSC canconvene a committee of no less than three Supreme Court or Court of Appeal judges to hold an

inquiry on its behalf into any matter concerning the judiciary.

The JSC must be independent. Appointments to the JSC should not be made by the executive in

order for it to be able to act independently and free from partisan influence. Membership shouldbe expanded to include a range of other appointees such as members of the independent legalprofession. The Ugandan Judicial Commission, set up in 1995, includes representatives of the

Supreme Court, attorneys chosen by the Ugandan legal society, the attorney general and publicservice commissioner. One of the keys to the success of this Commission is on its diverse

composition. There must be a greater number of members of the judiciary on the body than anyother constituent group.

.



11

Efficiency of the CourtsPublic confidence in the court system can only be fostered by a system that is efficient and

accountable. The backlog of cases and lengthy delays in trials and hearings is a barrier to accessto justice for citizens. Increasing the number of judicial appointments, increasing the use of

arbitration and introducing a night session in courts are all options for addressing this problem

which have been adopted by countries such as the United States. In cases of human rights abuseor in cases where victims and witnesses may be in danger of retribution of intimidation, casesneed to be heard expeditiously. Lack of faith in the efficiency of courts will engender a

reluctance among the public to seek justice through the legal system, preventing them fromaccessing the right to access to justice as set out under international human rights instruments.

To ensure that human rights are protected, the courts must function effectively and cases heard

by competent judges, particularly in the superior courts where issues of fundamental rights are atstake. The judges who are appointed to hear such cases should be unbiased and conversant in

international standards of human rights law. There have been instances in Sri Lanka where morecompetent and less partial judges have been marginalized from hearing cases pertaining to

human rights- as was highlighted by the IBA. The institutionalization of violence and weakenedconfidence of the rule of law are key factors in the reduction of fundamental rights submissions

that have been reported over the past decade.

Capacity of Judges

Lack of awareness of international laws and standards and changing national regulations is an

unfortunate reality among the judiciary. One of the main causes in Sri Lanka for poor legalknowledge among the bar and judiciary is the lack of access to educational materials and the

absence of systematic training and capacity building to keep lawyers and judges up to date withchanging developments in international law and Sri Lankan regulations. A competency based

system for promotions including an examination coupled with ongoing training and mentorshipfrom senior judges ensures a higher and continually evolving level of professionalism and

competence within the judicial service.

In the United Kingdom, the Judicial Studies Board was set up in 1979, following the BridgeReport which identified the most important objective of judicial training as being "To convey in

a condensed form the lessons, which experienced judges, have acquired from theirexperience...". The Judicial Studies Board is directly responsible for training full (salaried) and

part-time (fee-paid) judges in England and Wales, and for overseeing the training of magistratesand chairmen and members of tribunals. Similarly, India has established institutes for judicial

training following a decision of the All India Conference of Chief Ministers / Chief Justicespresided by the Prime Minister, held in the month of August/ September, 1985 in New Delhi.

Institutes providing training for new appointees and existing judges to expand their skills andknowledge not only on the law but on emerging best practices in case management and

expeditious disposal of cases. In the UK, there is an emphasis on ongoing mentorship andengagement between senior and junior judges

Right to Judicial Review and Redress through the Courts



12

Fundamental rights are recognized by the Constitution, with avenues for redress through theSupreme Court. However, the ability to seek redress through the judicial system is limited.

Article 17 refers to infringement of fundamental rights by executive or administrative action,omitting infringement by legislative action and judicial action. Article 80 (3) prohibits courts or

tribunals from questioning the validity of any Act of Parliament on any ground whatsoever

including violation of a fundamental right. The constitution allows courts to question the validityor any inconsistencies with the constitution at the Bill stage. There is no bar to question thevalidity of a statute passed by a provincial council. The aggrieved party must petition the

Supreme Court within one month of the actual or imminent violation. Further, the law stipulatesthat only the aggrieved party or his or her attorney has the right to petition the court. The Supreme

Court is empowered to grant ‘such relief or make such directions as it may seem just andequitable in the circumstances’ – this ambiguity will and does inevitable result in inconsistencies.

The 2001 International Bar Association Report recommended that “Fundamental rights under theSri Lankan Constitution should be protected as to their enforcement before the Supreme Court by

a coherent statement of principle, on the basis of which leave will be granted or refused.” Theabsence of such a statement of principle runs the risk that different panels of the Supreme Court

will adopt different criteria for the granting or refusal of leave based on varying interpretations.

Compliance with International Standards

All existing legislation should be reviewed to ensure that it complies with international standardsand guidelines. In the much publicized case of Nallaratnam Singarasa , the Supreme Court found

that in Sri Lanka, judicial power forms part of the sovereignty of the people and could beexercised in terms of the Sri Lankan Constitution only by courts established under the

Constitution. As such, the ruling of the UN Human Rights Committee in Geneva was not binding.This finding had a number of implications regarding Sri Lanka’s compliance with international

conventions and treaties that have been ratified but not conferred to the Constitution.

The Supreme Court further considered the legal effect of the Accession by the Sri Lankan State tothe ICCPR in l980, and the Accession to the Optional Protocol of the ICCPR and Declarationmade in 1997. The Court said that the President is empowered to enter into a treaty or accede to

an international Covenant, the content of which is not contrary to the Sri Lankan Constitution orwritten law. But, such a treaty or a Covenant has to be implemented by the exercise of legislative

power by the Sri Lankan Parliament, and where found to be necessary, by the people at areferendum, in order to have internal effect and attribute rights and duties to individuals. The

Court said in addition that where the President enters into a treaty or accedes to a Covenant thecontent of which is inconsistent with the provisions of the Constitution or written law it would bea breach of the limitation set out in the Constitution and would not bind Sri Lanka. Human rights

principles that Sri Lanka agrees to adopt must be binding if they are to be meaningful. This

commitment must be reflected by the Constitution.

Recommendations:

1. To assert a commitment to human rights principles and protection under international

law, amend Chapter III (in particular Article 15) and Chapter XVIII of the constitution,the Public Security Ordinance, and the 1979 Prevention of Terrorism Act (Temporary

Provisions) to state that derogations from and restrictions on constitutional and human



13

rights are limited by law to be consistent with the constraints imposed by theInternational Covenant on Civil and Political Rights and the International Covenant on

Economic, Social and Cultural Rights.

2. Judges must be trained to understand international law and human rights principles, Sri

Lanka’s obligations and the role of the judiciary. They must also be provided ongoing

capacity building and training to keep them abreast of changing regulations in thecountry and evolving best practices in case management and efficiency

3. Impartiality in terms of recruitment, appointments, transfers and appointments of judges

must be ensured4. Releasing information to the public about the number and nature of cases that have been

heard and the outcomes of hearings is an important confidence building measures, as wellas an integral part of the accountability of the judiciary to the public in a democracy. An

annual report released to the public that includes this information ,as well as the structureof the courts, number and composition of the judiciary and other relevant information

should be a mandatory function of the JSC or relevant appointed mechanism. The judiciary, at all levels, should be the subject of an annual report, signed by the Chief

Justice, and setting out for public information, full details of the functioning of courts,data on the number and type of cases and their disposal, of the detailed functioning of the

JSC.5. Parliamentary oversight of the administration of justice should be conducted through a

multi-party mechanism.6. Enhanced remuneration, proper housing and retirement benefits should be guaranteed to

all judges to ensure their human security and professional integrity7. Rewarding retired judges with state or government positions should be abolished

8. Complaints to the Courts should be heard and judgments delivered within reasonabletime limits

Enforcement of Laws

Various international instruments outline standards and norms for policing, such as theInternational Bill of Rights, the UN Code of Conduct for Law Enforcement Officials (and the

UN Basic Principles on the Use of Force and Firearms annex 2). Unreformed, unaccountablepolicing exerts a heavy toll on the human rights of citizens. Citizens who are not willing or able

to access protection by the police are deprived of fundamental rights that the State has aresponsibility to uphold.

The credibility of internal governance and accountability of the Police in Sri Lanka has been at

issues as early as 1946, when the Soertz Commission flagged serious concerns relating to thecomposition of the police, selection of officers for promotion and transfer, procedures for

investigations and complaints. The subsequent Basnayake Commission (1970) and Justice D.G.Jayalath Commission (1995) repeated the same issues which had, however become severely

amplified after years of inaction. None of the recommendations of the previous commissions hadbeen put into effect. Further issues by the time of the Jayalath Commission included the

increasing politicization of the Police and the introduction of anti-terrorist para-military elementsin the form of the Special Task Force (STF) against which allegations of abuse including

disappearances and extra-judicial killings have been well documented, however they have notbeen addressed.



14

An independent police force should be capable of maintaining law and order and investigatingcrimes impartially and effectively. This however, seldom occurs in Sri Lanka. The majority of

police investigations are manipulated especially in politically sensitive cases. Seldom is anyonewith connections to the ruling elite subjected to the due process of the law. Illegitimate political

interference is endemic and undermines the credibility and effective functioning of the police.

Arbitrary transfers, promotions and appointments create a highly politicized service which notonly results in officers neglecting to investigate certain forms of crime that may proveunfavorable to the ruling party or superior officers but also demoralizes and undermines fairness,

merit and the professionalism of the police. Arbitrary promotions or cases where the politicalinfluence of junior officers enables them to supersede the authority of their superiors increasing

becoming the norm. In the absence of internal or external controls, a culture of impunity isprevalent.

Accountability of the police as a central pillar in ensuring human security for the citizens of acountry is essential. While the state has an obligation to provide clear policy direction, set

standards and establish strong accountability mechanisms, there must also be a clear delineationof roles, responsibilities and relationships between the police and the executive laid. Service

Commissions are autonomous government bodies that oversee disciplinary and managementmatters in police agencies to limit potential political interference in selection, promotion, transfer

and removal of police officers. Nigeria’s Police Service Commission was established in 2001with a membership comprising of human rights advocates, women, businesspeople and media as

well as a retired Justice of the Superior Court. As an independent Constitutional body it haspower to discipline, dismiss and refer cases for criminal prosecution.

In 2002 the first National Police Commission (NPC) was appointed by the Constitutional

Council in Sri Lanka. The NPC held powers of appointment, promotion, transfer and disciplinarycontrol of all officers except for the Inspector General of Police (IGP). The NPC was also

empowered to establish a public complaints procedure. However, after the conclusion of the term

of the first batch there was no longer a Constitutional Council to attend to the Commission’sappointment, so there is no Commission. This has left the police open to heightenedpoliticization and political control. It has also left a lacuna in the ability of the public to lodge

complaints.

Lack of training and resources for police is a major problem. Without adequate budgetallocations and resources yet with pressure from superior officers to solve crimes quickly, police

all too often resort to methods such as torture and extra-judicial killing. Many officers lack knowledge of investigative techniques or modern crime solving methods. Some argue that even

if they did, the lack of resources, political influence and pressure to get fast results wouldprohibit officers from employing such techniques. While senior officers have had wide exposure

to training in human rights principles and international standards in policing, this awareness isnot being translated into practice, nor is it being transferred to junior officers who are at the front

line of policing.

Elimination of criminal elements within the police and the re-establishment of a clear andtransparent command responsibility within the police hierarchy is essential for its proper

function. Credible systems of investigations must be established and adhered to, and at the sametime the systemic use of torture as an investigative tool must be attended to. Training police in

modern investigative techniques is one important step, but beyond this an environment within the



15

service that enables officers to conduct proper investigations is essential. These vital reforms canonly take place under the direction of decisive policy reform and effective internal and external

monitoring and administrative mechanisms. In countries such as Singapore and Australia,Independent Commissions Against Corruption have been highly effective in bringing corruption

within the police to task. The strength of these Commissions has been their autonomy and far

reaching powers including the authority to prosecute. This strength stemmed from politicalsupport for the process of reform and strong political will for change.

Community Policing and De-militarization of the Police

Many people in Sri Lanka approach a police station only as a last resort or in an extreme

emergency. In some cases, language is a barrier for accessing assistance (most officers lack duallanguage capacity). The lack of confidence and trust in the police, amidst widespread perceptions

of corruption, weakens public confidence in the rule of law and, ultimately, contributes tocreating a culture of lawlessness.

In order to regain the trust of the public, police need to take on a more community based

approach that encompasses prevention as well as investigation and follow-up. In many countries,a more community-centered face of policing has been adopted, with supportive relationships

between the police and public playing a dramatic role in the reduction of crime and increase insuccessful investigations.

Democratic Policing is a term which characterizes a form of policing wherein the police servethe public and not a political regime. The UN International Police Task Force (1996) states that

“In a democratic society, the police serve to protect, rather than impede freedoms. The verypurpose of the police is to provide a safe, orderly environment in which these freedoms can be

exercised. The police force of a democracy is concerned strictly with the preservation of safecommunities and the application of criminal law equally to all people, without fear or favor.”

Community Policing, adopted in countries such as the UK and Canada, entrenches acollaborative approach to law and order, where the police work alongside local communitieswith an emphasis on working together to frame inclusive strategies for crime reduction. Police

and public interact as equals with a sense of shared values. For further reading on democraticpolicing and police reforms, see annex 5

Legislatures governing the police should be reformed to ensure that policing within the

democratic framework is accountable to the rule of law and to the public it serves, rather thanpolitical regimes.

Recommendations:

1. Policy reform and decisions on recruitments, transfers, promotions and disciplinaryactions of the police should be taken through an independent Police Commission without

political or partisan interference2. Community policing should be promoted to ensure public confidence in the police

3. The Police Force should be reformed to ensure independence, impartiality, efficiency andaccountability to society. The culture of corruption within the police should be eradicated

National Human Rights Institutions and Tribunals



16

Much of how effectively complaints authorities, ombudsman’s offices and human rightscommissions perform their functions once again depends on how truly separate from police and

executive influence they are and how autonomous and well established their status is within thelegal framework of the country.

The effectiveness of institutions and tribunals set up to monitor and safeguard human rightsdepends on the scope of their mandate, the extent of their investigative powers, competence and

composition of their leadership and staff, level of resources and funding and, critically, the levelof independence they have in reality from political interference and control. Further, such

institutions must have power to compel adherence to their reports and rulings. These minimumrequirements are contained within the Paris Principles for National Human Rights Institutions,

and can be applied to any oversight body.

In Sri Lanka, a number of institutions have been established for the protection and promotion of human rights with monitoring and reporting functions. Such institutions include the National

Human Rights Commission, the office of the Ombudsman, the Official Languages Commissionet al. While the establishment of these Commissions and bodies has demonstrated Sri Lanka’s

over-arching commitment to international standards and human rights principles, it is equallyclear that they have failed to fulfill the terms of their mandates primarily due to lack of

independence, lack of financial resources, lack of human resource capacity and inability to act toenforce recommendations. To ensure that these institutions function effectively, there must be

sufficient political will allow them to operate freely and to ensure that they have sufficientresources to do so.

Recommendations:

1. Recruitments and appointments of the members of all National Human Rights Institutionsand Judicial Tribunals should be conducted through independent, impartial and

transparent processes.2. Appointments should be confined to one term and no appointments for more than one

term should be allowed3. Independent, impartial, efficient and effective functioning of these institutions and

tribunals should be ensured through an effective oversight function of a multi-partyparliamentary mechanism

Conclusion

As Sri Lanka enters a critical point in its transition, the need to strengthen the rule of law toensure inclusive, democratic and effective governance is an urgent need. All citizens must have

respect for and confidence in the rule of law and the State instruments charged with itsadministration. To be effective, all three wings of the state must operate freely and

autonomously under a Constitution which reflects the international standards and norms to whichSri Lanka has committed. Necessary reforms must also be strengthened by effective and

empowered monitoring mechanisms that have the ability to address systemic failures that theydetect. To be effective and meaningful, the State must demonstrate the will and commitment to

make changes and to make sure they are enforced.



17

Annex 1

Declaration of Delhi on the Rule of Law in a Free Society

New Delhi, India,

(5-10 January 1959)

The theme of the New Delhi Congress was "The Rule of Law in a Free Society". TheCongress further developed the principles and procedures underlying the Rule of Law as well as

defining and clarifying the concept itself.

"The Delhi Congress gave rise to three important elements in the concept of the Rule of Law.

First, that the individual is possessed of certain rights and freedoms and that he is entitled to

protection of these rights and freedoms by the State; second, that there is an absolute need for

an independent judiciary and bar as well as for effective machinery for the protection of

fundamental rights and freedoms; and third, that the establishment of social, economic and

cultural conditions would permit men to live in dignity and to fulfil their legitimate aspirations."

(The International Commission of Jurists; The Pioneering Years, Lucian G. Weeramantry, p. 53)

In total over 185 Judges, Lawyers and Law Professors from 52 countries participated in theCongress. In preparation of the Congress, the Commission held a preparatory meeting in The

Hague, Netherlands on the 7 and 8 July 1958, where the drafting of the Congress Working Paperon the Rule of Law was mandated to former ICJ Secretary-General, Mr Norman Marsh. The 134

page paper was based on information gathered in an international survey of lawyers and legalinstitutions conducted by the ICJ Secretariat in the course of 1957. The information gathered

was divided into the following sections:

1. The Legislative and the Rule of Law

2. The Executive and the Rule of Law

3. Criminal Process and the Rule of Law

4. The Judiciary and Legal Profession under the Rule of Law.

The committees set up during the congress were each dedicated to one of the four themes with

the Working Paper providing the basis of the discussions. The reports and conclusions of thecommittees were presented in two plenary sessions and the texts were subsequently referred to aSteering Committee, which issued the conclusions at the closing plenary session.

A Summary of the Conclusions of the Committees:

1. The Legislative and the Rule of Law:





19

Concerning the arrest of an individual, the power to arrest should be regulated and the arrestedperson should be told at once the grounds of his or her arrest. He or she should be entitled to a

legal adviser and be brought before a judicial authority within a short period of time.

In relation to pre-trial detention, the committee listed the rights of the arrested, including theright to apply for bail.

Conclusions were also made in respect to the preparation and conduct of the defence and the

minimum duties of the prosecution. These included the requirement that the prosecution notwithhold favourable evidence from the accused.

Regarding the examination of the accused, the committee laid down minimum standards, suchas respect for the right not to incriminate oneself and provisions that guarantee the physical and

psychological integrity of the accused.

The committee also made conclusions regarding trial in public for criminal cases and the right to

appeals and remedies.

Lastly, the committee concluded that the Rule of Law did not require any particular theory

regarding punishment, but must necessarily condemn cruel, inhuman or excessive preventivemeasures or punishments and thus the committee supported the adoption of reformative

measures wherever possible.

4. The Judiciary and the Legal Professions under the Rule of Law

The committee on the Judiciary and the Legal Profession emphasized the importance of an

independent judiciary in upholding the Rule of Law. The independence of the judiciary would

be safeguarded by certain measures, including co-operation between at least two branches of thestate (i.e. judiciary and legislative) on the appointment of judges. Furthermore, the committeeperceived the "irremovability" of the judiciary as an important safeguard of the Rule of Law.

Regarding the legal profession, the committee deemed an organized legal profession free tomanage its own affairs to be essential. While a lawyer should be free to accept any case which is

offered to him, he should also in some cases be obliged to defend persons with whom he doesnot sympathize.

The committee also addressed the issue of equal access to the justice. It was perceived to be theprimary obligation of the legal profession to use its best efforts to ensure that adequate legal

advice and representation were provided. The state and community would however have the

obligation to assist the legal profession in carrying out this responsibility.

The Declaration of Delhi

The Declaration was general in nature and embodied the desirable features of countriesgoverned by the Rule of Law. Most notably, the declaration asserted the universality of the Rule

of Law. Responsibility for the implementation of the Declaration lay both with the participantsand the International Commission of Jurists: The Declaration "calls on the Jurists in all countries

to give effect in their own communities to the principles expressed in the Conclusions of the



20

Congress" and the International Commission of Jurists itself was requested to "employ its fullresources to give practical effect throughout the world to the conclusions of the Congress".

Declaration of Delhi

This International Congress of Jurists, consisting of 185 judges, practising lawyers and teachers

of law from 53 countries, assembled in New Delhi in January 1959 under the aegis of the International Commission of Jurists, having discussed freely and frankly the Rule of Law and

the administration of justice throughout the world, and having reached conclusions regarding

the legislative, the executive, the criminal process, the judiciary and the legal profession, (which

conclusions are annexed to this Declaration),

Now solemnly

Reaffirms the principles expressed in the Act of Athens adopted by the International Congress of

Jurists in 1955, particularly that independent judiciary and legal profession are essential to the

maintenance of the Rule of Law and to the proper administration of justice;

Recognises that the Rule of Law is a dynamic concept for the expansion and fulfilment of which

jurists are primarily responsible and which should be employed not only to safeguard and

advance the civil and political rights of the individual in a free society, but also to establishsocial, economic, educational and cultural conditions under which his legitimate aspirations

and dignity may be realised;

Calls on the jurists in all countries to give effect in their own communities to the principles

expressed in the conclusions of the Congress; and finally

Requests the International Commission of Jurists

1. To employ its full resources to give practical effect throughout the world to the principles

expressed in the conclusions of the Congress.

2. To give special attention and assistance to countries now in the process of establishing,

reorganising or consolidating their political and legal institutions.

3. To encourage law students and the junior members of the legal profession to support the Rule

of Law.

4. To communicate this Declaration and the annexed conclusions to governments, to interested

international organisations, and to associations of lawyers throughout the world.

This Declaration shall be known as the Declaration of Delhi.

Done at Delhi this 10th day of January 1959



21

Annex 2

United Nation’s Basic Principles on the Independence of the Judiciary

Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatmentof Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General

Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , theirdetermination to establish conditions under which justice can be maintained to achieve

international co-operation in promoting and encouraging respect for human rights andfundamental 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 publichearing by a competent, independent and impartial tribunal established by law,

Whereas the International Covenants on Economic, Social and Cultural Rights and on Civil andPolitical 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 frequently there still exists a gap between the vision underlying those principles and theactual situation,

Whereas the organization and administration of justice in every country should be inspired bythose 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 inaccordance with those principles,

Whereas judges are charged with the ultimate decision over life, freedoms, rights, duties andproperty of citizens,

Whereas the Sixth 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 judgesand the selection, professional training and status of judges and prosecutors,

Whereas it is, therefore, appropriate that consideration be first given to the role of judges inrelation to the system of justice and to the importance of their selection, training and conduct,

The following basic principles, formulated to assist Member States in their task of securing andpromoting the independence of the judiciary should be taken into account and respected by

Governments within the framework of their national legislation and practice and be brought tothe attention of judges, lawyers, members of the executive and the legislature and the public in



22

general. The principles have been formulated principally with professional judges in mind, butthey apply equally, as appropriate, to lay judges, where they exist.

Independence of the judiciary

1. The independence of the judiciary shall be guaranteed by the State and enshrined in theConstitution or the law of the country. It is the duty of all governmental and other institutions torespect and observe the independence of the judiciary.

2. The judiciary shall decide matters before them impartially, on the basis of facts and inaccordance with the law, without any restrictions, improper influences, inducements, pressures,

threats or interferences, direct or indirect, from any quarter or for any reason.

3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall haveexclusive authority to decide whether an issue submitted for its decision is within its competence

as defined by law.

4. There shall not be any inappropriate or unwarranted interference with the judicial process, norshall judicial decisions by the courts be subject to revision. This principle is without prejudice to

judicial review or to mitigation or commutation by competent authorities of sentences imposedby the judiciary, in accordance with the law.

5. Everyone shall have the right to be tried by ordinary courts or tribunals using established legalprocedures. Tribunals that do not use the duly established procedures of the legal process shall

not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals.

6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure

that judicial proceedings are conducted fairly and that the rights of the parties are respected.

7. It is the duty of each Member State to provide adequate resources to enable the judiciary to

properly perform its functions.

Freedom of expression and association

8. In accordance with the Universal Declaration of Human Rights, members of the judiciary are

like other citizens entitled to freedom of expression, belief, association and assembly; provided,however, that in exercising such rights, judges shall always conduct themselves in such a manner

as to preserve the dignity of their office and the impartiality and independence of the judiciary.

9. Judges shall be free to form and join associations of judges or other organizations to representtheir interests, to promote their professional training and to protect their judicial independence.



23

Qualifications, selection and training

10. Persons selected for judicial office shall be individuals of integrity and ability withappropriate training or qualifications 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 otheropinion, national or social origin, property, birth or status, except that a requirement, that acandidate for judicial office must be a national of the country concerned, shall not be considered

discriminatory.

Conditions of service and tenure

11. The term of office of judges, their independence, security, adequate remuneration, conditions

of service, pensions and the age of retirement shall be adequately secured by law.

12. Judges, whether appointed or elected, shall have guaranteed tenure until a mandatory

retirement age or the expiry of their term of office, where such exists.

13. Promotion of judges, wherever such a system exists, should be based on objective factors, in

particular ability, integrity and experience.

14. The assignment of cases to judges within the court to which they belong is an internal matter

of judicial administration.

Professional secrecy and immunity

15. The judiciary shall be bound by professional secrecy with regard to their deliberations and to

confidential information acquired in the course of their duties other than in public proceedings,and shall not be compelled to testify on such matters.

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 fromcivil suits for monetary damages for improper acts or omissions in the exercise of their judicial

functions.

Discipline, suspension and removal

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 theright 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 behaviourthat renders them unfit to discharge their duties.



24

19. All disciplinary, suspension or removal proceedings shall be determined in accordance withestablished 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



25

BEIJING STATEMENT OF PRINCIPLES OF THE

INDEPENDENCE OF THE JUDICIARY IN THELAW ASIA REGION

(August 1997)

Judicial Independence1. 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 Civiland Political Rights (Art. 14(l)) proclaim that everyone should be entitled to a fair and public

hearing by a competent, independent and impartial tribunal established by law. An independentJudiciary 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 anysource; and

(b) the Judiciary has jurisdiction, directly or by way of review, over all issues of a justiciablenature.

4. The maintenance of the independence of the Judiciary is essential to the attainment of itsobjectives 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 theConstitution or the law.

5. It is the duty of the Judiciary to respect and observe the proper objectives and functions of theother 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 judgment in accordance witharticle 3 (a). The Judiciary, on its part, individually and collectively, shall exercise its functionsin accordance with the Constitution and the law.

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

8. To the extent consistent with their duties as members of the Judiciary, judges, like othercitizens, 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 torepresent their interests and promote their professional training and to take such other action to

protect their independence as may be appropriate.

Objectives of the Judiciary10. 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 them

attainment of human rights; and(c) to administer the law impartially among persons and between persons and the State.

Appointment of Judges11. To enable the Judiciary to achieve its objectives and perform its functions, it is essential



26

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 influencesbeing taken into account so that only persons of competence, integrity and independence are

appointed.

13. In the selection judges there must be 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, except 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 other, judges are chosen from the practising profession. Therefore, it is accepted that in

different societies, different procedures and safeguards may be adopted to ensure the properappointment of judges.

15. In some societies, the appointment of judges, by, with the consent of, or after consultationwith a Judicial Services Commission has been seen as a means of ensuring that those chosen as

judges are appropriate for the purpose. Where a Judicial Services Commission is adopted, itshould include representatives of 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 thepublic.

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

Tenure18. 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 procedure.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 her or his term of

office.22. Judges should be subject to removal from office only for proved incapacity, conviction of

a crime, or conduct which 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 parliamentaryprocedures 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 everused; 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 thepeople do not apply, procedures for the removal of judges must be under the control of the

judiciary.25. Where parliamentary procedures or 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, thereshould, in the first instance, be an examination of the reasons suggested for the removal, for the



27

purpose of determining whether formal proceedings should be commenced. Formal proceedingsshould 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. Judgments in disciplinary proceedings, whether held in camera or in public, should bepublished.

29. The abolition of the court of which a judge is a member must not be accepted as a reason oran 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 judicialoffice 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 theExecutive after due consultation with the Judiciary, such consent shall not be unreasonably

withheld by an individual judge.

Judicial Conditions31. 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 theirdisadvantage 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 fromcivil suits for monetary damages for improper acts or omissions in the exercise of their judicial

functions.

Jurisdiction33. 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 asdefined by law.

34. The jurisdiction of the highest court in a society should not be limited or restricted withoutthe consent of the members of the court.

Judicial Administration35. The assignment of cases to judges is a matter of judicial administration over which ultimatecontrol must belong to the chief judicial officer of the relevant court.

36. The principal responsibility for court administration, including appointment, supervision anddisciplinary 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 Judiciary having regard to the needs of judicial independence andadministration. The amount allotted should be sufficient to enable each court to function

without an excessive workload.



28

Relationship with the Executive38. 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.

Resources41. It is essential that judges be provided with the resources necessary to enable them toperform their functions.

42. Where economic constraints make it difficult to allocate to the court system facilities andresources 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 theneeds of the judiciary and the court system be accorded a high level of priority in the allocation

of resources.

Emergency43. Some derogations from judicial independence may be permitted in times of grave public

emergency which threaten the life of the society but only for the period of time strictlyrequired 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 toreview 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 anddetention of persons administratively without charge shall be subject to review by courts or other

independent authority by way of habeas 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 or tribunal orother remedy by way of an application for annulment. It is the conclusion of the Chief Justices

and other judges of Asia and the Pacific listed below that these represent the minimum standardsnecessary to be observed in order to maintain the independence and effective functioning of the

Judiciary.



29

Code of Conduct for Law Enforcement Officials

Adopted by General Assembly resolution 34/169 of 17 December 1979

Article 1

Law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving

the community and by protecting all persons against illegal acts, consistent with the high degreeof responsibility required by their profession.

Commentary :

( a ) The term "law enforcement officials", includes all officers of the law, whether appointed orelected, who exercise police powers, especially the powers of arrest or detention.

( b ) In countries where police powers are exercised by military authorities, whether uniformed

or not, or by State security forces, the definition of law enforcement officials shall be regarded asincluding officers of such services.

( c ) Service to the community is intended to include particularly the rendition of services of assistance to those members of the community who by reason of personal, economic, social or

other emergencies are in need of immediate aid.

( d ) This provision is intended to cover not only all violent, predatory and harmful acts, butextends to the full range of prohibitions under penal statutes. It extends to conduct by persons not

capable of incurring criminal liability.

Article 2

In the performance of their duty, law enforcement officials shall respect and protect human

dignity and maintain and uphold the human rights of all persons.

Commentary :

( a ) The human rights in question are identified and protected by national and international law.

Among the relevant international instruments are the Universal Declaration of Human Rights,the International Covenant on Civil and Political Rights, the Declaration on the Protection of All

Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, the United Nations Declaration on the Elimination of All Forms of RacialDiscrimination, the International Convention on the Elimination of All Forms of RacialDiscrimination, the International Convention on the Suppression and Punishment of the Crime of

Apartheid , the Convention on the Prevention and Punishment of the Crime of Genocide, theStandard Minimum Rules for the Treatment of Prisoners and the Vienna Convention on Consular

Relations.



30

( b ) National commentaries to this provision should indicate regional or national provisionsidentifying and protecting these rights.

Article 3

Law enforcement officials may use force only when strictly necessary and to the extent requiredfor the performance of their duty.

Commentary :

( a ) This provision emphasizes that the use of force by law enforcement officials should be

exceptional; while it implies that law enforcement officials may be authorized to use force as isreasonably necessary under the circumstances for the prevention of crime or in effecting or

assisting in the lawful arrest of offenders or suspected offenders, no force going beyond that maybe used.

( b ) National law ordinarily restricts the use of force by law enforcement officials in accordancewith a principle of proportionality. It is to be understood that such national principles of proportionality are to be respected in the interpretation of this provision. In no case should this

provision be interpreted to authorize the use of force which is disproportionate to the legitimateobjective to be achieved.

( c ) The use of firearms is considered an extreme measure. Every effort should be made toexclude the use of firearms, especially against children. In general, firearms should not be used

except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected

offender. In every instance in which a firearm is discharged, a report should be made promptly to

the competent authorities.

Article 4

Matters of a confidential nature in the possession of law enforcement officials shall be kept

confidential, unless the performance of duty or the needs of justice strictly require otherwise.

Commentary :

By the nature of their duties, law enforcement officials obtain information which may relate to

private lives or be potentially harmful to the interests, and especially the reputation, of others.

Great care should be exercised in safeguarding and using such information, which should bedisclosed only in the performance of duty or to serve the needs of justice. Any disclosure of suchinformation for other purposes is wholly improper.

Article 5

No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel,inhuman or degrading treatment or punishment, nor may any law enforcement official invoke



31

superior orders or exceptional circumstances such as a state of war or a threat of war, a threat tonational security, internal political instability or any other public emergency as a justification of

torture or other cruel, inhuman or degrading treatment or punishment.

Commentary :

( a ) This prohibition derives from the Declaration on the Protection of All Persons from BeingSubjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted

by the General Assembly, according to which:

"[Such an act is] an offence to human dignity and shall be condemned as a denial of the purposes

of the Charter of the United Nations and as a violation of the human rights and fundamentalfreedoms proclaimed in the Universal Declaration of Human Rights [and other international

human rights instruments]."

( b ) The Declaration defines torture as follows:

". . . torture means any act by which severe pain or suffering, whether physical or mental, isintentionally inflicted by or at the instigation of a public official on a person for such purposes as

obtaining from him or a third person information or confession, punishing him for an act he hascommitted or is suspected of having committed, or intimidating him or other persons. It does not

include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to theextent consistent with the Standard Minimum Rules for the Treatment of Prisoners."

( c ) The term "cruel, inhuman or degrading treatment or punishment" has not been defined bythe General Assembly but should be interpreted so as to extend the widest possible protection

against abuses, whether physical or mental.

Article 6

Law enforcement officials shall ensure the full protection of the health of persons in theircustody and, in particular, shall take immediate action to secure medical attention whenever

required.

Commentary :

( a ) "Medical attention", which refers to services rendered by any medical personnel, including

certified medical practitioners and paramedics, shall be secured when needed or requested.

( b ) While the medical personnel are likely to be attached to the law enforcement operation, lawenforcement officials must take into account the judgement of such personnel when they

recommend providing the person in custody with appropriate treatment through, or inconsultation with, medical personnel from outside the law enforcement operation.

( c ) It is understood that law enforcement officials shall also secure medical attention for victimsof violations of law or of accidents occurring in the course of violations of law.



32

Article 7

Law enforcement officials shall not commit any act of corruption. They shall also rigorouslyoppose and combat all such acts.

Commentary :

( a ) Any act of corruption, in the same way as any other abuse of authority, is incompatible withthe profession of law enforcement officials. The law must be enforced fully with respect to any

law enforcement official who commits an act of corruption, as Governments cannot expect toenforce the law among their citizens if they cannot, or will not, enforce the law against their own

agents and within their agencies.

( b ) While the definition of corruption must be subject to national law, it should be understoodto encompass the commission or omission of an act in the performance of or in connection with

one's duties, in response to gifts, promises or incentives demanded or accepted, or the wrongful

receipt of these once the act has been committed or omitted.

( c ) The expression "act of corruption" referred to above should be understood to encompass

attempted corruption.

Article 8

Law enforcement officials shall respect the law and the present Code. They shall also, to the best

of their capability, prevent and rigorously oppose any violations of them.

Law enforcement officials who have reason to believe that a violation of the present Code has

occurred or is about to occur shall report the matter to their superior authorities and, wherenecessary, to other appropriate authorities or organs vested with reviewing or remedial power.

Commentary :

( a ) This Code shall be observed whenever it has been incorporated into national legislation or

practice. If legislation or practice contains stricter provisions than those of the present Code,those stricter provisions shall be observed.

( b ) The article seeks to preserve the balance between the need for internal discipline of the

agency on which public safety is largely dependent, on the one hand, and the need for dealing

with violations of basic human rights, on the other. Law enforcement officials shall reportviolations within the chain of command and take other lawful action outside the chain of command only when no other remedies are available or effective. It is understood that law

enforcement officials shall not suffer administrative or other penalties because they havereported that a violation of this Code has occurred or is about to occur.

( c ) The term "appropriate authorities or organs vested with reviewing or remedial power" refersto any authority or organ existing under national law, whether internal to the law enforcement



33

agency or independent thereof, with statutory, customary or other power to review grievancesand complaints arising out of violations within the purview of this Code.

( d ) In some countries, the mass media may be regarded as performing complaint review

functions similar to those described in subparagraph ( c ) above. Law enforcement officials may,

therefore, be justified if, as a last resort and in accordance with the laws and customs of theirown countries and with the provisions of article 4 of the present Code, they bring violations tothe attention of public opinion through the mass media.

( e ) Law enforcement officials who comply with the provisions of this Code deserve the respect,

the full support and the co-operation of the community and of the law enforcement agency inwhich they serve, as well as the law enforcement profession.



34



35

Basic Principles on the Role of Lawyers

Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment

of Offenders, Havana, Cuba, 27 August to 7 September 1990

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , theirdetermination to establish conditions under which justice can be maintained, and proclaim as one

of their purposes the achievement of international cooperation in promoting and encouragingrespect for human rights and fundamental freedoms without distinction as to race, sex, language

or religion,

Whereas the Universal Declaration of Human Rights enshrines the principles of equality before

the law, the presumption of innocence, the right to a fair and public hearing by an independentand impartial tribunal, and all the guarantees necessary for the defence of everyone charged with

a penal offence,

Whereas the International Covenant on Civil and Political Rights proclaims, in addition, the rightto be tried without undue delay and the right to a fair and public hearing by a competent,

independent and impartial tribunal established by law,

Whereas the International Covenant on Economic, Social and Cultural Rights recalls theobligation of States under the Charter to promote universal respect for, and observance of,

human rights and freedoms,

Whereas the Body of Principles for the Protection of All Persons under Any Form of Detention

or Imprisonment provides that a detained person shall be entitled to have the assistance of, and to

communicate and consult with, legal counsel,

Whereas the Standard Minimum Rules for the Treatment of Prisoners recommend, in particular,

that legal assistance and confidential communication with counsel should be ensured to untriedprisoners,

Whereas the Safeguards guaranteeing protection of those facing the death penalty reaffirm the

right of everyone suspected or charged with a crime for which capital punishment may beimposed to adequate legal assistance at all stages of the proceedings, in accordance with article

14 of the International Covenant on Civil and Political Rights,

Whereas the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Powerrecommends measures to be taken at the international and national levels to improve access to justice and fair treatment, restitution, compensation and assistance for victims of crime,

Whereas adequate protection of the human rights and fundamental freedoms to which all persons

are entitled, be they economic, social and cultural, or civil and political, requires that all personshave effective access to legal services provided by an independent legal profession,



36

Whereas professional associations of lawyers have a vital role to play in upholding professionalstandards and ethics, protecting their members from persecution and improper restrictions and

infringements, providing legal services to all in need of them, and cooperating withgovernmental and other institutions in furthering the ends of justice and public interest,

The Basic Principles on the Role of Lawyers, set forth below, which have been formulated toassist Member States in their task of promoting and ensuring the proper role of lawyers, shouldbe respected and taken into account by Governments within the framework of their national

legislation and practice and should be brought to the attention of lawyers as well as otherpersons, such as judges, prosecutors, members of the executive and the legislature, and the public

in general. These principles shall also apply, as appropriate, to persons who exercise thefunctions of lawyers without having the formal status of lawyers.

Access to lawyers and legal services

1. All persons are entitled to call upon the assistance of a lawyer of their choice to protect and

establish their rights and to defend them in all stages of criminal proceedings.

2. Governments shall ensure that efficient procedures and responsive mechanisms for effective

and equal access to lawyers are provided for all persons within their territory and subject to their jurisdiction, without distinction of any kind, such as discrimination based on race, colour, ethnic

origin, sex, language, religion, political or other opinion, national or social origin, property, birth,economic or other status.

3. Governments shall ensure the provision of sufficient funding and other resources for legal

services to the poor and, as necessary, to other disadvantaged persons. Professional associationsof lawyers shall cooperate in the organization and provision of services, facilities and other

resources.

4. Governments and professional associations of lawyers shall promote programmes to inform

the public about their rights and duties under the law and the important role of lawyers inprotecting their fundamental freedoms. Special attention should be given to assisting the poor

and other disadvantaged persons so as to enable them to assert their rights and where necessarycall upon the assistance of lawyers.

Special safeguards in criminal justice matters

5. Governments shall ensure that all persons are immediately informed by the competent

authority of their right to be assisted by a lawyer of their own choice upon arrest or detention orwhen charged with a criminal offence.

6. Any such persons who do not have a lawyer shall, in all cases in which the interests of justiceso require, be entitled to have a lawyer of experience and competence commensurate with the

nature of the offence assigned to them in order to provide effective legal assistance, withoutpayment by them if they lack sufficient means to pay for such services.



37

7. Governments shall further ensure that all persons arrested or detained, with or withoutcriminal charge, shall have prompt access to a lawyer, and in any case not later than forty-eight

hours from the time of arrest or detention.

8. All arrested, detained or imprisoned persons shall be provided with adequate opportunities,

time and facilities to be visited by and to communicate and consult with a lawyer, without delay,interception or censorship and in full confidentiality. Such consultations may be within sight, butnot within the hearing, of law enforcement officials.

Qualifications and training

9. Governments, professional associations of lawyers and educational institutions shall ensurethat lawyers have appropriate education and training and be made aware of the ideals and ethical

duties of the lawyer and of human rights and fundamental freedoms recognized by national andinternational law.

10. Governments, professional associations of lawyers and educational institutions shall ensurethat there is no discrimination against a person with respect to entry into or continued practicewithin the legal profession on the grounds of race, colour, sex, ethnic origin, religion, political or

other opinion, national or social origin, property, birth, economic or other status, except that arequirement, that a lawyer must be a national of the country concerned, shall not be considered

discriminatory.

11. In countries where there exist groups, communities or regions whose needs for legal servicesare not met, particularly where such groups have distinct cultures, traditions or languages or have

been the victims of past discrimination, Governments, professional associations of lawyers andeducational institutions should take special measures to provide opportunities for candidates

from these groups to enter the legal profession and should ensure that they receive trainingappropriate to the needs of their groups.

Duties and responsibilities

12. Lawyers shall at all times maintain the honor and dignity of their profession as essentialagents of the administration of justice.

13. The duties of lawyers towards their clients shall include;

( a ) Advising clients as to their legal rights and obligations, and as to the working of the legal

system in so far as it is relevant to the legal rights and obligations of the clients;

( b ) Assisting clients in every appropriate way, and taking legal action to protect their interests;

( c ) Assisting clients before courts, tribunals or administrative authorities, where appropriate.



38

14. Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shallseek to uphold human rights and fundamental freedoms recognized by national and international

law and shall at all times act freely and diligently in accordance with the law and recognizedstandards and ethics of the legal profession.

15. Lawyers shall always loyally respect the interests of their clients.

Guarantees for the functioning of lawyers

16. Governments shall ensure that lawyers ( a ) are able to perform all of their professionalfunctions without intimidation, hindrance, harassment or improper interference; ( b ) are able to

travel and to consult with their clients freely both within their own country and abroad; and ( c )shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions

for any action taken in accordance with recognized professional duties, standards and ethics.

17. Where the security of lawyers is threatened as a result of discharging their functions, they

shall be adequately safeguarded by the authorities.

18. Lawyers shall not be identified with their clients or their clients' causes as a result of

discharging their functions.

19. No court or administrative authority before whom the right to counsel is recognized shall

refuse to recognize the right of a lawyer to appear before it for his or her client unless that lawyerhas been disqualified in accordance with national law and practice and in conformity with these

principles.

20. Lawyers shall enjoy civil and penal immunity for relevant statements made in good faith in

written or oral pleadings or in their professional appearances before a court, tribunal or otherlegal or administrative authority.

21. It is the duty of the competent authorities to ensure lawyers access to appropriateinformation, files and documents in their possession or control in sufficient time to enable

lawyers to provide effective legal assistance to their clients.



39

Guidelines on the Role of Prosecutors

Adopted by the Eighth United Nations Congress on the Prevention of Crimeand the Treatment of Offenders, Havana, Cuba.

27 August to 7 September 1990

Whereas in the Charter of the United Nations the peoples of the world affirm, inter alia , theirdetermination to establish conditions under which justice can be maintained, and proclaim as oneof their purposes the achievement of international cooperation in promoting and encouraging

respect for human rights and fundamental freedoms without distinction as to race, sex, languageor religion,

Whereas the Universal Declaration of Human Rights enshrines the principles of equality before

the law, the presumption of innocence and the right to a fair and public hearing by anindependent and impartial tribunal,

Whereas frequently there still exists a gap between the vision underlying those principles and the

actual situation,

Whereas the organization and administration of justice in every country should be inspired bythose principles, and efforts undertaken to translate them fully into reality,

Whereas prosecutors play a crucial role in the administration of justice, and rules concerning the

performance of their important responsibilities should promote their respect for and compliancewith the above-mentioned principles, thus contributing to fair and equitable criminal justice and

the effective protection of citizens against crime,

Whereas it is essential to ensure that prosecutors possess the professional qualifications required

for the accomplishment of their functions, through improved methods of recruitment and legaland professional training, and through the provision of all necessary means for the properperformance of their role in combating criminality, particularly in its new forms and dimensions,

Whereas the General Assembly, by its resolution 34/169 of 17 December 1979, adopted the

Code of Conduct for Law Enforcement Officials, on the recommendation of the Fifth UnitedNations Congress on the Prevention of Crime and the Treatment of Offenders,

Whereas in resolution 16 of the Sixth United Nations Congress on the Prevention of Crime and

the Treatment of Offenders, the Committee on Crime Prevention and Control was called upon toinclude 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 Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted the Basic Principles on the Independence of the Judiciary, subsequently

endorsed by the General Assembly in its resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985,

Whereas the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power



40

recommends measures to be taken at the international and national levels to improve access to justice and fair treatment, restitution, compensation and assistance for victims of crime,

Whereas , in resolution 7 of the Seventh Congress the Committee was called upon to consider

the need for guidelines relating, inter alia , to the selection, professional training and status of

prosecutors, their expected tasks and conduct, means to enhance their contribution to the smoothfunctioning of the criminal justice system and their cooperation with the police, the scope of theirdiscretionary powers, and their role in criminal proceedings, and to report thereon to future

United Nations congresses, The Guidelines set forth below, which have been formulated to assistMember States in their tasks of securing and promoting the effectiveness, impartiality and

fairness of prosecutors in criminal proceedings, should be respected and taken into account byGovernments within the framework of their national legislation and practice, and should be

brought to the attention of prosecutors, as well as other persons, such as judges, lawyers,members of the executive and the legislature and the public in general. The present Guidelines

have been formulated principally with public prosecutors in mind, but they apply equally, asappropriate, to prosecutors appointed on an ad hoc basis.

Qualifications, selection and training1. Persons selected as prosecutors shall be individuals of integrity and ability, with appropriatetraining and qualifications.

2. States shall ensure that:( a ) Selection criteria for prosecutors embody safeguards against appointments based on

partiality or prejudice, excluding any discrimination against a person on the grounds of race,colour, sex, language, religion, political or other opinion, national, social or ethnic origin,

property, birth, economic or other status, except that it shall not be considered discriminatory torequire a candidate for prosecutorial office to be a national of the country concerned;

( b ) Prosecutors have appropriate education and training and should be made aware of the idealsand ethical duties of their office, of the constitutional and statutory protections for the rights of

the suspect and the victim, and of human rights and fundamental freedoms recognized bynational and international law.

Status and conditions of service3. Prosecutors, as essential agents of the administration of justice, shall at all times maintain thehonour and dignity of their profession.

4. States shall ensure that prosecutors are able to perform their professional functions withoutintimidation, hindrance, harassment, improper interference or unjustified exposure to civil, penal

or other liability.5. Prosecutors and their families shall be physically protected by the authorities when their

personal safety is threatened as a result of the discharge of prosecutorial functions.6. Reasonable conditions of service of prosecutors, adequate remuneration and, where

applicable, tenure, pension and age of retirement shall be set out by law or published rules orregulations.

7. Promotion of prosecutors, wherever such a system exists, shall be based on objective factors,in particular professional qualifications, ability, integrity and experience, and decided upon in

accordance with fair and impartial procedures.



41

Freedom of expression and association8. Prosecutors like other citizens are entitled to freedom of expression, belief, association and

assembly. In particular, they shall have the right to take part in public discussion of mattersconcerning the law, the administration of justice and the promotion and protection of human

rights and to join or form local, national or international organizations and attend their meetings,

without suffering professional disadvantage by reason of their lawful action or their membershipin a lawful organization. In exercising these rights, prosecutors shall always conduct themselvesin accordance with the law and the recognized standards and ethics of their profession.

9. Prosecutors shall be free to form and join professional associations or other organizations torepresent their interests, to promote their professional training and to protect their status.

Role in criminal proceedings10. The office of prosecutors shall be strictly separated from judicial functions.11. Prosecutors shall perform an active role in criminal proceedings, including institution of

prosecution and, where authorized by law or consistent with local practice, in the investigation of crime, supervision over the legality of these investigations, supervision of the execution of court

decisions and the exercise of other functions as representatives of the public interest.12. Prosecutors shall, in accordance with the law, perform their duties fairly, consistently and

expeditiously, and respect and protect human dignity and uphold human rights, thus contributingto ensuring due process and the smooth functioning of the criminal justice system.

13. In the performance of their duties, prosecutors shall:( a ) Carry out their functions impartially and avoid all political, social, religious, racial, cultural,

sexual or any other kind of discrimination;( b ) Protect the public interest, act with objectivity, take proper account of the position of the

suspect and the victim, and pay attention to all relevant circumstances, irrespective of whetherthey are to the advantage or disadvantage of the suspect;

( c ) Keep matters in their possession confidential, unless the performance of duty or the needs of justice require otherwise;

( d ) Consider the views and concerns of victims when their personal interests are affected andensure that victims are informed of their rights in accordance with the Declaration of Basic

Principles of Justice for Victims of Crime and Abuse of Power.14. Prosecutors shall not initiate or continue prosecution, or shall make every effort to stay

proceedings, when an impartial investigation shows the charge to be unfounded.15. Prosecutors shall give due attention to the prosecution of crimes committed by public

officials, particularly corruption, abuse of power, grave violations of human rights and othercrimes recognized by international law and, where authorized by law or consistent with local

practice, the investigation of such offences.16. When prosecutors come into possession of evidence against suspects that they know or

believe on reasonable grounds was obtained through recourse to unlawful methods, whichconstitute a grave violation of the suspect's human rights, especially involving torture or cruel,

inhuman or degrading treatment or punishment, or other abuses of human rights, they shallrefuse to use such evidence against anyone other than those who used such methods, or inform

the Court accordingly, and shall take all necessary steps to ensure that those responsible for usingsuch methods are brought to justice.



42

Discretionary functions17. In countries where prosecutors are vested with discretionary functions, the law or published

rules or regulations shall provide guidelines to enhance fairness and consistency of approach intaking decisions in the prosecution process, including institution or waiver of prosecution.

Alternatives to prosecution18. In accordance with national law, prosecutors shall give due consideration to waivingprosecution, discontinuing proceedings conditionally or unconditionally, or diverting criminal

cases from the formal justice system, with full respect for the rights of suspect(s) and thevictim(s). For this purpose, States should fully explore the possibility of adopting diversion

schemes not only to alleviate excessive court loads, but also to avoid the stigmatization of pre-trial detention, indictment and conviction, as well as the possible adverse effects of

imprisonment.19. In countries where prosecutors are vested with discretionary functions as to the decision

whether or not to prosecute a juvenile, special consideration shall be given to the nature andgravity of the offence, protection of society and the personality and background of the juvenile.

In making that decision, prosecutors shall particularly consider available alternatives toprosecution under the relevant juvenile justice laws and procedures. Prosecutors shall use their

best efforts to take prosecutory action against juveniles only to the extent strictly necessary.

Relations with other government agencies or institutions20. In order to ensure the fairness and effectiveness of prosecution, prosecutors shall strive to

cooperate with the police, the courts, the legal profession, public defenders and other governmentagencies or institutions.

Disciplinary proceedings21. Disciplinary offences of prosecutors shall be based on law or lawful regulations. Complaintsagainst prosecutors which allege that they acted in a manner clearly out of the range of

professional standards shall be processed expeditiously and fairly under appropriate procedures.Prosecutors shall have the right to a fair hearing. The decision shall be subject to independent

review.22. Disciplinary proceedings against prosecutors shall guarantee an objective evaluation and

decision. They shall be determined in accordance with the law, the code of professional conductand other established standards and ethics and in the light of the present Guidelines.

Observance of the Guidelines23. Prosecutors shall respect the present Guidelines. They shall also, to the best of theircapability, prevent and actively oppose any violations thereof.

24. Prosecutors who have reason to believe that a violation of the present Guidelines hasoccurred or is about to occur shall report the matter to their superior authorities and, where

necessary, to other appropriate authorities or organs vested with reviewing or remedial power



43

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials

Adopted by the Eighth United Nations Congress on the Prevention of Crime and the

Treatment of Offenders, Havana, Cuba - 27 August to 7 September 1990

Whereas the work of law enforcement officials 1 is a social service of great importance and thereis, therefore, a need to maintain and, whenever necessary, to improve the working conditions and

status of these officials,

Whereas a threat to the life and safety of law enforcement officials must be seen as a threat to thestability of society as a whole,

Whereas law enforcement officials have a vital role in the protection of the right to life, liberty

and security of the person, as guaranteed in the Universal Declaration of Human Rights andreaffirmed in the International Covenant on Civil and Political Rights,

Whereas the Standard Minimum Rules for the Treatment of Prisoners provide for thecircumstances in which prison officials may use force in the course of their duties,

Whereas article 3 of the Code of Conduct for Law Enforcement Officials provides that lawenforcement officials may use force only when strictly necessary and to the extent required for

the performance of their duty,

Whereas the preparatory meeting for the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Varenna, Italy, agreed on elements to be

considered in the course of further work on restraints on the use of force and firearms by lawenforcement officials,

Whereas the Seventh Congress, in its resolution 14, inter alia , emphasizes that the use of force

and firearms by law enforcement officials should be commensurate with due respect for humanrights,

Whereas the Economic and Social Council, in its resolution 1986/10, section IX, of 21 May1986, invited Member States to pay particular attention in the implementation of the Code to the

use of force and firearms by law enforcement officials, and the General Assembly, in itsresolution 41/149 of 4 December 1986, inter alia , welcomed this recommendation made by the

Council,

Whereas it is appropriate that, with due regard to their personal safety, consideration be given tothe role of law enforcement officials in relation to the administration of justice, to the protection

of the right to life, liberty and security of the person, to their responsibility to maintain publicsafety and social peace and to the importance of their qualifications, training and conduct,

The basic principles set forth below, which have been formulated to assist Member States in their

task of ensuring and promoting the proper role of law enforcement officials, should be taken intoaccount and respected by Governments within the framework of their national legislation and



44

practice, and be brought to the attention of law enforcement officials as well as other persons,such as judges, prosecutors, lawyers, members of the executive branch and the legislature, and

the public.

General provisions

1. Governments and law enforcement agencies shall adopt and implement rules and regulationson the use of force and firearms against persons by law enforcement officials. In developing suchrules and regulations, Governments and law enforcement agencies shall keep the ethical issues

associated with the use of force and firearms constantly under review.2. Governments and law enforcement agencies should develop a range of means as broad as

possible and equip law enforcement officials with various types of weapons and ammunition thatwould allow for a differentiated use of force and firearms. These should include the development

of non-lethal incapacitating weapons for use in appropriate situations, with a view to increasinglyrestraining the application of means capable of causing death or injury to persons. For the same

purpose, it should also be possible for law enforcement officials to be equipped with self-defensive equipment such as shields, helmets, bullet-proof vests and bullet-proof means of

transportation, in order to decrease the need to use weapons of any kind.3. The development and deployment of non-lethal incapacitating weapons should be carefully

evaluated in order to minimize the risk of endangering uninvolved persons, and the use of suchweapons should be carefully controlled.

4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms

only if other means remain ineffective or without any promise of achieving the intended result.5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

( a ) Exercise restraint in such use and act in proportion to the seriousness of the offence and thelegitimate objective to be achieved;

( b ) Minimize damage and injury, and respect and preserve human life;( c ) Ensure that assistance and medical aid are rendered to any injured or affected persons at the

earliest possible moment;( d ) Ensure that relatives or close friends of the injured or affected person are notified at the

earliest possible moment.6. Where injury or death is caused by the use of force and firearms by law enforcement officials,

they shall report the incident promptly to their superiors, in accordance with principle 22.7. Governments shall ensure that arbitrary or abusive use of force and firearms by law

enforcement officials is punished as a criminal offence under their law.8. Exceptional circumstances such as internal political instability or any other public emergency

may not be invoked to justify any departure from these basic principles.

Special provisions9. Law enforcement officials shall not use firearms against persons except in self-defence or

defence of others against the imminent threat of death or serious injury, to prevent the erpetrationof a particularly serious crime involving grave threat to life, to arrest a person presenting such a

danger and resisting their authority, or to prevent his or her escape, and only when less extrememeans are insufficient to achieve these objectives. In any event, intentional lethal use of firearms

may only be made when strictly unavoidable in order to protect life.10. In the circumstances provided for under principle 9, law enforcement officials shall identify



45

themselves as such and give a clear warning of their intent to use firearms, with sufficient timefor the warning to be observed, unless to do so would unduly place the law enforcement officials

at risk or would create a risk of death or serious harm to other persons, or would be clearlyinappropriate or pointless in the circumstances of the incident.

11. Rules and regulations on the use of firearms by law enforcement officials should include

guidelines that:( a ) Specify the circumstances under which law enforcement officials are authorized to carryfirearms and prescribe the types of firearms and ammunition permitted;

( b ) Ensure that firearms are used only in appropriate circumstances and in a manner likely todecrease the risk of unnecessary harm;

( c ) Prohibit the use of those firearms and ammunition that cause unwarranted injury or presentan unwarranted risk;

( d ) Regulate the control, storage and issuing of firearms, including procedures for ensuring thatlaw enforcement officials are accountable for the firearms and ammunition issued to them;

( e ) Provide for warnings to be given, if appropriate, when firearms are to be discharged;( f ) Provide for a system of reporting whenever law enforcement officials use firearms in the

performance of their duty.

Policing unlawful assemblies12. As everyone is allowed to participate in lawful and peaceful assemblies, in accordance with

the principles embodied in the Universal Declaration of Human Rights and the InternationalCovenant on Civil and Political Rights, Governments and law enforcement agencies and officials

shall recognize that force and firearms may be used only in accordance with principles 13 and14.

13. In the dispersal of assemblies that are unlawful but non-violent, law enforcement officialsshall avoid the use of force or, where that is not practicable, shall restrict such force to the

minimum extent necessary.14. In the dispersal of violent assemblies, law enforcement officials may use firearms only when

less dangerous means are not practicable and only to the minimum extent necessary. Lawenforcement officials shall not use firearms in such cases, except under the conditions stipulated

in principle 9.

Policing persons in custody or detention15. Law enforcement officials, in their relations with persons in custody or detention, shall not

use force, except when strictly necessary for the maintenance of security and order within theinstitution, or when personal safety is threatened.

16. Law enforcement officials, in their relations with persons in custody or detention, shall notuse firearms, except in self-defence or in the defence of others against the immediate threat of

death or serious injury, or when strictly necessary to prevent the escape of a person in custody ordetention presenting the danger referred to in principle 9.

17. The preceding principles are without prejudice to the rights, duties and responsibilities of prison officials, as set out in the Standard Minimum Rules for the Treatment of Prisoners,

particularly rules 33, 34 and 54.



46

Qualifications, training and counselling18. Governments and law enforcement agencies shall ensure that all law enforcement officials

are selected by proper screening procedures, have appropriate moral, psychological and physicalqualities for the effective exercise of their functions and receive continuous and thorough

professional training. Their continued fitness to perform these functions should be subject to

periodic review.19. Governments and law enforcement agencies shall ensure that all law enforcement officialsare provided with training and are tested in accordance with appropriate proficiency standards in

the use of force. Those law enforcement officials who are required to carry firearms should beauthorized to do so only upon completion of special training in their use.

20. In the training of law enforcement officials, Governments and law enforcement agenciesshall give special attention to issues of police ethics and human rights, especially in the

investigative process, to alternatives to the use of force and firearms, including the peacefulsettlement of conflicts, the understanding of crowd behaviour, and the methods of persuasion,

negotiation and mediation, as well as to technical means, with a view to limiting the use of forceand firearms. Law enforcement agencies should review their training programmes and

operational procedures in the light of particular incidents.21. Governments and law enforcement agencies shall make stress counselling available to law

enforcement officials who are involved in situations where force and firearms are used.

Reporting and review procedures22. Governments and law enforcement agencies shall establish effective reporting and

reviewprocedures for all incidents referred to in principles 6 and 11 ( f ). For incidents reportedpursuant to these principles, Governments and law enforcement agencies shall ensure that an

effective review process is available and that independent administrative or prosecutorialauthorities are in a position to exercise jurisdiction in appropriate circumstances. In cases of

death and serious injury or other grave consequences, a detailed report shall be sent promptly tothe competent authorities responsible for administrative review and judicial control.

23. Persons affected by the use of force and firearms or their legal representatives shall haveaccess to an independent process, including a judicial process. In the event of the death of such

persons, this provision shall apply to their dependants accordingly.24. Governments and law enforcement agencies shall ensure that superior officers are held

responsible if they know, or should have known, that law enforcement officials under theircommand are resorting, or have resorted, to the unlawful use of force and firearms, and they did

not take all measures in their power to prevent, suppress or report such use.25. Governments and law enforcement agencies shall ensure that no criminal or disciplinary

sanction is imposed on law enforcement officials who, in compliance with the Code of Conductfor Law Enforcement Officials and these basic principles, refuse to carry out an order to use

force and firearms, or who report such use by other officials.26. Obedience to superior orders shall be no defence if law enforcement officials knew that an

order to use force and firearms resulting in the death or serious injury of a person was manifestlyunlawful and had a reasonable opportunity to refuse to follow it. In any case, responsibility also

rests on the superiors who gave the unlawful orders.1/ In accordance with the commentary to article 1 of the Code of Conduct for Law Enforcement

Officials, the term "law enforcement officials" includes all officers of the law, whether appointedor elected, who exercise police powers, especially the powers of arrest or detention. In countries



47

where police powers are exercised by military authorities, whether uniformed or not, or by Statesecurity forces, the definition of law enforcement officials shall be regarded as including officers

of such services.



48

Annex 3

Sri Lanka: Failing to Protect the Rule of Law and the Independence of the Judiciary (November 2001

* )

EXECUTI VE SUMMARYThe following is a summary of the conclusions and recommendations of the International BarAssociation (IBA) delegation following its mission to Sri Lanka between 28 August 2001 and 31August 2001. During this period the delegation held meetings with lawyers, the Bar Association,representatives of the media, judges academics, professionals and politicians.

The mission was organised by the Human Rights Institute of the IBA. The purpose of the visit wastwo fold:

(1) to identify the circumstances surrounding the calling of a referendum on the Constitution, assessthe constitutional position of such action and the implications for the rule of law;

(2) in the light of recent cases seeking to disbar the Chief Justice from practising as a lawyer andattempts by over one-third of MPs to have him impeached, to examine the guarantees for theindependence of the judiciary, and the practical respect these guarantees receive.

During its visit the delegation also became aware that there are serious threats to freedom of speechand the press in Sri Lanka. Given the importance of free speech to the accountability of electedrepresentatives, civil servants and the judiciary, and to the rule of law and democratic process, thedelegation felt compelled to assess the situation and report on its findings.

The findings, conclusions and recommendations of the delegation are summarised as follows.

Independence of the JudiciaryThe delegation was of the view that the perception of a lack of independence of the judiciary was indanger of becoming widespread and that it was extremely harmful to respect for the rule of law byordinary citizens. I t was concerned that not only is there a perception that the judiciary is notindependent, there may indeed be some basis in fact for the existence of such a viewpoint in relationto a minority of the judiciary. There were also serious concerns expressed about the discipline,retirement, appointment, transfer and promotion of judges under the auspices of the JudicialServices Commission (JSC). The delegation was not confident that the JSC is acting entirelywithout outside interference. The delegation recommends:

1. Appointments of judges by the President and without an independent process of assessmentshould be ceased. All judges should be appointed by an independent process of assessment, basedon merit, with names being forwarded to the President or Minister of Justice for final appointment.2. The appointment, transfer, discipline, dismissal or retirement of judges of whatever rank must bedetermined by a transparent and accountable system. Built into this system must be the opportunity

* summary of the conclusions and recommendations of the International Bar Association (IBA) delegation following its

mission to Sri Lanka between 28 August 2001 and 31 August 2001. Full report can be accessed in the website of theInternational Bar Association



49

for a fair hearing, at which the proceedings are recorded and a copy given to the judge in questionfollowed by a reasoned decision, and with a right of appeal.3. The JSC must be independent. To ensure this, consideration should be given tothe following:i) Membership should be expanded to include a range of other appointees such as members of theindependent legal profession. There must be a greater number of members of the judiciary on thebody than any other constituent group.ii) Appointments to the JSC should not be made by the executive.iii) The method of selecting members for the JSC must be transparent andindependent.4. The salaries, security of tenure and conditions of appointment of judges should be such as toattract the best candidates for a judicial career.5. The judiciary, at all levels, should be the subject of an annual report, signed by the Chief Justice,and setting out for public information, full details of the functioning of courts, data on the numberand type of cases and their disposal, and of the detailed functioning of the JSC.6. Fundamental rights under the Sri Lankan Constitution should be protected as to theirenforcement before the Supreme Court by a coherent statement of principle, on the basis of which

leave will be granted or refused. The absence of such a statement of principle runs the risk thatdifferent panels of the Supreme Court will adopt different criteria for the granting or refusal ofleave.7. The administration of the Supreme Court should collate and publish data on the number and typeof fundamental rights cases disposed of, and in regard to particular panels of the bench, so as todetermine whether there has been a reduction in the number of cases granted leave. But in anyevent, such data serves to clarify the basis on which jurisdiction is being exercised quantitativelyand qualitatively. This should be reviewed by a body separate to judicial administration.8. The panels of three Supreme Court judges who hear fundamental rights applications should besubject to an appropriate system of rotation. Clearly the president should be the most senior judge.Every attempt should be made for the junior judges to sit regularly with the most senior judges.

9. Any proceedings or inquiries concerning the position of the Chief Justice when Attorney-General,and in connection with his appointment as Chief Justice, should be resolved by decision orappropriate judicial action and not left in abeyance. Further, any continuation of the present, orfuture impeachment proceedings of the Chief Justice should be dealt with rapidly and with dueprocess of law.10. No politician, including the President, should engage in gratuitous or unsupported allegationsagainst members of the judiciary.11. While judges and the courts are not exempt from public debate, it is contrary to the interests of

justice for debate to descend to politically-motivated criticism which has the effect of underminingthe stature and independence of the judiciary.12. Such support from the executive and the legislature must be matched by the judiciary ensuring

that at all times it avoids either bias or the impression of bias, whether in the course of proceedings,or in the manner in which particular panels of judges are selected or proceedings listed orconducted.

Constitutional ReformIt was concluded by the delegation that constitutional reform is provided for in the Sri LankanConstitution under Article 82 and Article 83. In both instances, the support of a two-thirds majorityin Parliament is required. Constitutional reform via referendum is, in the view of the delegation,



50

unconstitutional. As to the applicability of the doctrine of necessity, the delegation recognises that inthe most serious and urgent situations, courts applicable to the situation facing modern Sri Lanka

The delegation concluded that:13. Constitutional reform must take place through constitutional means.14. The doctrine of necessity can rarely, if ever, be used to justifyconstitutional change in a democratic society. Legal norms, established bythe Constitution, must be, by and large, obeyed and if not obeyed, applied,otherwise legal order as a whole would lose its validity.15. The Government’s call for a referendum as a route for constitutional changewas:

i) Constitutionally inappropriate.ii) Framed in terms that were not readily comprehensible to lawyers andcertainly not to electors.

16. The appropriate constitutional route under the present Constitution is:

i) By Article 82, whereby Parliament would be the vehicle for constitutional change given a two-thirds majority.ii) Alternatively, under Article 83, reform of certain ‘core’ provisions require the calling of a publicreferendum and agreement by a two-thirds majority of Parliament.

17. What is neither appropriate, nor constitutionally proper is to call for constitutional reformthrough a referendum when the Constitution provides no route for implementation of anyconstitutional reform other than through Parliament.18. I t appeared to the delegation that the vast majority of those consulted, including those fromopposing political parties, accepted the need for substantial constitutional reform so as to establish:

i) Much stronger parliamentary control of government as against the present constitutional systemof a strong presidential executive government.ii) The introduction of five commissions dealing with justice, media, police, elections and theConstitution. These are independent commissions designed to ensure fair and efficient workingrelationships between the executive and the institutions themselves.19. The delegation would also like to recommend that any reform of the Constitution should beaccompanied by any necessary changes to accommodate a settlement of the Tamil problem.20. Such reforms should, in the view of the delegation, take into account:i) An adequate balance between central and regional government.ii) Adequate autonomy, especially in the Tamil area.iii) The defined role of central government in the fields of defence, foreign affairs, national security,

taxation and any other appropriate area.

The MediaThe delegation was very firmly of the view that Sri Lanka would benefit from an independent,pluralistic media which is free from overly repressive state regulation. The media must be free topublish or broadcast the stories its journalists have uncovered in the public interest, without fear ofcensorship, recrimination or being sued. Ideally there must be only limited and narrowly definedrestrictions on publication and these must be free from political interference. In return, the mediaitself should investigate and report fairly and reasonably and always in the national interest.



51

The delegation concluded:

21. The use of criminal defamation is contrary to the fundamental human rights set out within SriLanka’s Constitution and is an affront to a free media. As to the exercise of the prosecution powersby the Attorney-General in relation to criminal defamation, it is unclear on what principles theAttorney-General should act so as to ensure he acts fairly and objectively and seeks to avoid unjustpressure on the media.22. The use of licensing controls and pressure on advertisers, tactics purportedlyused by the Government to close down TV stations, is unacceptable.23. In a literate modern democracy, there is no need for government control of the press, TV orradio and certainly not by way of state ownership. The capacity of any government and executive tomanipulate the media to its own ends and particularly to stifle free debate is obvious and cannot be

justified.24. The delegation rejects, in the strongest possible terms, the use of interrogation and harassmentby the police of security forces of media employees as a means of controlling free speech.25. The delegation noted that all the politicians whom it met were supportive of a free media.However, this willingness to support the right to freedom of speech and bring about reform must be

guaranteed regardless of which political party is in power.26. The media itself should investigate and report fairly and reasonably and always in the nationalinterest. With a free media comes responsibility and the delegation feels that the relationshipbetween the Government and the media would be improved if there was greater trust andrecognition of this.

The delegation recommends:27. There must be a repeal of the law of criminal defamation. It offends the fundamental right offreedom of expression. Its survival since the 1978 Constitution is an anachronism arising from theprovision preserving pre-Constitution laws. I t is inimical to a free media and represents a continueduse of colonial legislation in the free modern democracy of Sri Lanka. It has led to:

i) A system of prosecution of the media at the instigation of the Attorney-General and theGovernment.ii) The use of criminal penalties to stifle, gag and punish the media.iii) The involvement of the judiciary in a process which is entirely inappropriate as it becomes aquasi-arbiter in political disputes between the Government and media.28. A National Press Association should be formed which is free from party interest or influence. Itshould include a diverse range of members from both within and outside the industry. This bodymust be both constitutionally and factually free from influence from the executive or legislature.29. It is imperative that the proposals to set up a media commission are seen through to fruition andthat the reforms proposed are considered seriously and in the interests of protecting a free media.30. There should be a National Advisory Council for the media, independent of the Government

and independent of any new constitutional commission, which should issue an annual report on thestate of the media and its relations with Government, Parliament and the people. It could includemembers from abroad who are eminent in the field.31. I t is vital that the media is supported by all political parties to include a genuine and detailedguarantee of the freedom of the press and a willingness to effect change, regardless of which party isin power.32. Laws relating to freedom of expression should be reviewed to ensure that they are in conformitywith Sri Lanka’s international obligations.



52

33. After the elections, the new Government should take steps to divest itself of ownership of thestate media.

ConclusionThere is no democracy in which these matters can be taken for granted. The delegation’s proposalsare meant to assist and contribute constructively to the future progress of Sri Lanka. A better futurefor Sri Lanka depends on a stable democracy supported by an expanding economy. This aimrequires an independent judiciary, a free media and a constitutional framework that commandsconfidence. Underpinning all this must be a respect for the rule of law and its application to allaspects of life and society in Sri Lanka. (www.ibanet.org)



53

Annex 4

JUDICIAL INDEPENDENCE AND FINANCIAL DISCLOSURE

(This is a Consolidated Response prepared by Prepared by Scott Worden and Leigh Toomey for

the International Network to promote the Rule of Law with contributions from Tyler Rauert,

Scott Worden, Laura Mercean, Meghan Stewart, David Ennis, Nathalie Ndongo-Seh, Rick

Messick, Zafar Gondal, Natalia Djurickovic, Claudia Baroni)

Background:

Judicial integrity is a cornerstone of the rule of law. Yet judges in transitional countries often

face immense political and financial pressure to issue corrupt rulings. Judicial corruption is

especially damaging to people’s faith in justice – and governance in general - but uncovering and

eradicating corruption is particularly difficult in countries that have neither strong investigative

capacity nor transparent financial systems. Requiring routine financial disclosures from judgesand other judicial officials can be a powerful tool in preventing corruption, aiding the discovery

and prosecution of corrupt activity, and increasing judicial transparency by illuminating potential

conflicts of interest.

Query:

What are the international standards or best practices for mandating financial disclosure by

judges? What mechanisms should be put in place to implement these requirements? that are the

key variables that must be considered to implement a financial disclosure regime in a country

emerging from conflict, and are there any “lessons learned” that can be applied from recent

experience with enacting judicial financial disclosure legislation?

Response Summary:

Financial disclosure by judges is recognized in developed countries as a useful tool for policing

the judiciary to protect against corruption in the form of illicit enrichment and conflicts of

interest. The form and effectiveness of judicial financial disclosures in war torn societies

emerging from conflict, however, vary significantly based on the type and level of sophistication

of the legal system where it is being applied. In the context of an international peace operation,

financial disclosure regimes often have limited potential to act as a deterrent against corruption

because those countries lack effective systems to implement and monitor the disclosures. In

countries without electronic banking records, for example, it is extremely time consuming to

verify financial records. Oversight bodies may themselves be corrupted, with the result that

sensitive financial information may not only be lost but also criminally exploited. There are no

easy answers to these significant challenges and there are few examples of successful

implementation of such regimes in countries emerging from conflict.





55

regulation, particular attention must be paid to any constitutional or other legal requirements

about the separation of powers in that country to ensure that laws regulating judges are not an

infringement of their rights as judicial officials independent from the executive branch. Further

information on asset disclosure legislation and disclosure forms from various jurisdictions is

found in the Resources section below.

c. Best Practices: In the absence of more specific universally recognized standards for financial

disclosure by judges‡, IFES has produced a list of ten best practices for income and asset

disclosure by judges.

2. Scope of Disclosure

a. Who must disclose?: Do the requirements apply to all judges, or only to judges at some evels,

or to all judicial employees and officials such as prosecutors and clerks? Ideally, financial

disclosure will be required of all judicial officials whose positions give them sufficient potential

to influence the outcome of a case as a result of a bribe or other improper influence. In manylegal systems, this would include prosecutors and clerks/registrars, and they should also be

included in disclosure requirements. In doing so, however, special attention should be paid to

which branch or division of government

‡ In 2001, an attempt to produce a more specific model code on the financial disclosure requirements for judges was

made by a UN convened group of experts - the Judicial Group on Strengthening Judicial Integrity. The group

produced a draft Code of Judicial Conduct in 2001, which contained several guidelines including:

Rule 1.15 prohibition on serving as a fiduciary, except for the estate of a family member;

Rule 1.16 prohibition on financial and business dealings that would interfere with judicial independence or

the appearance thereof, except for personal or family investments;

Rule 1.20 prohibition of judicial bribery, whether the beneficiary of the gift or advantage is the judge or a

family member;

Rule 1.21 authorization of gifts and benefits, subject to public disclosure requirements;

Rule 1.22 authorization of compensation and expenses for extra-judicial activities;

Rule 1.22a reasonable amount and proportionality to what a non-judge would receive for the same

activities;

Rule 1.22b limitations on reimbursement;

Rule 1.23 requirement of financial disclosure and payment of taxes required by law.

The Code was developed primarily by judges from a common law background. When it was revised in 2002 (see the

Bangalore Principles of Judicial Conduct) by judges from other legal traditions, these guidelines were not included.



56

has regulatory authority over each type of employee. Thus, judicial disclosure may be required

by a law on the functioning of the judiciary, whereas clerks may be covered by a law on the civil

service. Special attention should also be paid to the budgetary implications of requiring more

employees to file disclosures. In cases where countries are enacting a comprehensive anti-

corruption act and financial disclosure regime for a wide range of public officials, each relevant

category of judicial officials should be explicitly identified.

b. What must be disclosed ?: The contents of financial disclosure regulations vary, but normally

include elements similar to that required by income tax systems, including basic income from all

sources, assets such as investments (stocks, bonds etc), bank accounts, pensions and intangibles,

real property and major items of personal property. Requiring disclosure of fiduciary interests

(board memberships, for example) in an asset disclosure is also important to guard against real or

potential conflicts of interest. Disclosure should cover both domestic and international holdings

and transactions, as well as the dates and locations of payment and other basic information to

permit verification of any element of the disclosure. Disclosure should also include any

significant financial liabilities.

c. Family Members: Many disclosure regimes also include the assets of spouses and minor

children to prevent judges from hiding income and assets under their relatives’ names or from

receiving bribes indirectly via family connections. This is particularly true in societies where

assets are held by and shared freely among relatives. However, a definition that is too broad can

raise privacy issues and overburden the disclosure mechanism.

d. How often will disclosures be made?: The frequency of disclosures may vary depending on the

typical tenure of serving judges and the administrative resources at hand. Generally speaking,

disclosures should be made before employment begins, when employment ends, and no greaterthan two years in between. Annual disclosures are preferable in that they assist in detecting

corruption earlier, particularly in the post-conflict environment, though the costs of doing so may

be burdensome and would have to be taken into account. Disclosure should also be required if

the judge is promoted to a higher court.

3. Use of Disclosures

a. Public or Private: A critical piece of any financial disclosure regulation is the extent to which

information is available to the public. Generally speaking, the more public the information, the

better that corruption and conflicts of interest can be effectively monitored (by the public andinterest groups, as well as by any anti-corruption agencies). But this will necessarily infringe on

general privacy rights of the public employees and their families. Reasonable national standards

will balance this right to privacy with the public interest in transparency. Thus, some states have

adopted a two-tier system, whereby judges must disclose detailed information to an authorized

monitoring body, but only relevant summary details (such as the names of business interests







59

(INPROL would welcome further comments from members on this query, particularly examples

of financial disclosure regimes, which have proven successful in the post conflict context, and

any details about the cost of different levels of disclosure.)

________________

Compilation of Resources:

This Consolidated Response draws from many of the following resources. All listed documents

with a hyperlink are uploaded to the INPROL Digital Library unless otherwise noted.

INTERNATIONAL AND REGIONAL STANDARDS AND BEST PRACTICES

UN Basic Principles on the Independence of the Judiciary (1985)

UN Convention Against Corruption (2003)

The Bangalore Principles of Judicial Conduct (2002)

UN Code of Conduct for Public Officials (1996)

Council of Europe Criminal Law Convention on Corruption (1999)

OECD Anti-Corruption Convention (1997)

Inter-American Convention against Corruption (1996)



60





62

governments are failing in their primary duty to provide the public with an honest, efficient,

effective police service that ensures the rule of law and an environment of safety and security.

The only legitimate policing is policing that helps create an environment free from fear and

conducive to the realization of people's human rights, particularly those that promote unfettered

political activity, which is the hallmark of a democracy. Given the weight of evidence it would

be easy to paint the police across the Commonwealth in monochromatic black. This would be

entirely unfair. In many countries the police are a very trusted and well-respected public service

and in many more they do a hard and thankless job in difficult circumstances. Nevertheless,

barring a few honourable exceptions, there is too much wrong with policing in the

Commonwealth for the association and its member states to persist in closing their eyes to the

fact that the continued presence of unreformed policing - powerful, unaccountable, coercive,

biased, and corrupt – remains a badge of long gone colonial subservience rather than a mark of

confident sovereignty.

What Ails the Police?

Repeated citations of police wrongdoing, ranging from individual bad behaviour to

institutionalized criminality, are undermining the fundamental principles of the Commonwealth

Harare Declaration, to which all Commonwealth members have committed to abide. Abusive

policing methods damage democracy, weaken the rule of law and lead to gross violations of

human rights. Rising crime, greater perceptions of vulnerability and fear of victimization in all

parts of the Commonwealth demand improved policing. Unprecedented security concerns have

created more room for heavy-handed policing methods and tighter internal security regimes. This

has generated new problems in police community relations and torn at the interface of policing,

democratic values and human rights.

Routine disobedience to procedural law is a prevalent feature of abusive policing. This includes:

detaining people without reasonable cause and/or for longer than permissible periods without

bringing them before a designated authority; carrying out indiscriminate arrests; and even taking

innocent family members hostage to coerce those wanted for questioning to turn themselves in.

Corruption too, is impeding police functioning in large parts of the Commonwealth. A bribe is

often a prerequisite to registering a crime - or for looking away, with payments made to help

"steer" investigations. Equally disturbing is the stifling of legitimate political activity. Too often

acting as agents of ruling elites, police marginalize political opponents, assist in toppling

governments in some places and help them stay in power in others. Trampling key human rights

through police bias against ethnic, religious or linguistic minorities is a major cause of concern

as well. Crimes against women abound in Commonwealth countries but are often met with a

poor response, with stereotyping of women and patriarchal attitudes prejudicing the way police

handle cases.

All too frequently, chilling reports surface of police resorting to extra judicial killings as a 'quick

fix' device. Faced with mounting public frustration at their inefficacy in controlling crime or low-



63

level conflicts, police seek to solve deep-rooted security challenges by simply liquidating the

problem without the need to go through the "inconvenience" of the legal process. Most

alarmingly, regular reports from all regions of the Commonwealth show that torture is a widely

prevalent incident of custody. Perhaps the greatest public resentment and disappointment over

bad policing is reserved for impunity - the safety from punishment provided by authorities and

supervisors to errant police. This includes a boundless tolerance for poor performance in

delivering safety and security and protecting the rule of law. Given that the police are largely

governed by the political executive - and in many jurisdictions closely controlled by it - impunity

persists not by accident, but by design. Serious breaches of law and accountability arise out of

nurtured relationships of patronage. Undoubtedly, government is entitled to provide police with

policy direction and set standards for performance. However, the distinction between appropriate

executive direction and inappropriate political interference in operational matters is frequently

transgressed to the detriment of the rule of law.

Improving Policing

Democratic nations need democratic policing. This gives practical meaning to the

Commonwealth's promise of democracy and good governance and is applicable to any context -

rich or poor, large or small, diverse or homogenous. Commonwealth countries have signed up to

many international laws and standards. Although these provide a framework for democratic

policing, in practice, national constitutions and police laws are more immediately relevant to the

conduct of police officers and organizations. As such, it is vital that legislation reflects these

international standards and establishes police that "serve to protect, rather than impede,

freedoms. The very purpose of the police is to provide a safe, orderly environment in which these

freedoms can be exercised. A democratic police force is not concerned with people's beliefs or

associates, their movements or conformity to state ideology. It is not even primarily concerned

with the enforcement of regulations or bureaucratic regimens. Instead, the police force of a

democracy is concerned strictly with the preservation of safe communities and the application of

criminal law equally to all people, without fear or favour" (United Nations International Police

Task Force, 1996). The Commonwealth now has inspiring examples of reform, despite often

very deep initial resistance to such change. The end of conflict in Northern Ireland, for instance,

provided a moment for redesigning a new kind of police capable of sustaining the confidence of

a diverse and divided community. Countries like South Africa, Sierra Leone, Fiji and Nigeria

that have undergone dramatic transitions from authoritarianism to democracy have begun to

showcase some of the seminal lessons for police reform.

Depending on the context, police reform has entailed wholesale review of legislation and

redefinition of role, as well as restructuring aimed at making the organisation less militaristic and

hierarchical and more merit-based. Reform has sought to change the internal sub-culture in

matters of ethics and discipline to bring about changes in attitude aimed at moving the police

away from its frequently fortress-like mentality to becoming inclusive and responsive.

Recruitment has been improved to be more representative. Training has gone beyond the military



64

march and baton drill to inculcating knowledge of human rights, nurturing initiative, honing new

skills and creating professional specialisations. Reform has addressed the need for improved

service conditions of the rankand file, and given attention to their career advancement based on

good performance rather than patronage. It has also harnessed technology, reassessed available

financial and human resources, and devised strategies to make optimum use of scarce resources

while putting in place rigorous oversight systems that ensure financial integrity. Vital to new

systems is their ability to insulate police from illegitimate outside interference, permitting

officers functional autonomy coupled with management responsibility for delivering overall

good services. This has involved careful demarcation of roles between political authorities and

security agencies.

Democratic Policing

Reform requires a shift from "regime" policing to "democratic" policing. This entails an

approach founded on principles of equity and equality, accountability, transparency,

participation, respect for diversity, the accommodation of dissent, protection of individual andgroup rights, and encouragement of human potential. A 'democratic' police organization is one

that:

is accountable to the law, and not a law unto itself. Democratic policing requires that the

police act within the boundaries of domestic and international law. Actions of the police are

always subject to court scrutiny and those who break the law face consequences both through

internal disciplinary systems and the criminal law.

is accountable to democratic governance structures and the community. To ensure that the

police do not become overly controlled by and identified with a single seat of power,democratic police independently answer to all three branches of governance - the executive,

the parliament and the judiciary - as well as to the community.

is transparent in its activities. Most police activity should be open to scrutiny and regularly

reported to outside bodies. Information about individual behaviour, as much as operations,

must be in the public domain.

gives top operational priority to protecting the safety and rights of individuals and groups.

The police must be responsive to the needs of individuals and groups - especially those who

are vulnerable and marginalized. In diverse and fragmented societies, police organizations

must be responsive and respectful across social divides and always uphold the law without

bias.

protects human rights. Police must protect the right to life and dignity of all, and in particular

the exercise of democratic freedoms - freedom of speech, association, assembly, movement,

and freedom from arbitrary arrest, detention and exile.



65

provides society with professional services. As an organization with huge powers in which

the public places enormous trust, the police must be governed by a strong code of ethics and

professional conduct and be answerable for delivering high quality services.

is representative of the communities it serves. Police organizations which reflect the

populations they serve are more likely to enjoy their confidence and cooperation and earn thetrust of vulnerable and marginal groups who most need their protection.

Democratic policing not only protects democratic institutions and supports an environment

where activities essential to democracy can flourish but also demonstrates democratic values in

its own institutional structures and processes.

Accountability Mechanisms

In line with the doctrine of checks and balances that characterize democratic systems of

governance, at the heart of democratic policing lies the need to create multiple layers of

accountability to transform police organizations from oppressive engines of a few powerful

interests to a service for all. Internally these deal with discipline, ethics and performance, while

external oversight extends across parliament, the judiciary and the executive, to the community

and widens to giving account to newer independent civilian oversight mechanisms (including

human rights commissions and ombudsmen). Working in tandem, the strength and impartiality

of each of these mechanisms creates strength and credibility for the police. Accountability: 3 +

Accountability to the Three Pillars of State

Ensuring human security is the high duty of the state and every country is obligated to provide an

honest, effective and efficient police service. All three pillars of governance – the executive,parliament and the judiciary - each have a specific and defined role to play in ensuring good

policing. Government is entitled to provide clear policy direction, prepare policing plans, set

standards or performance indicators, and establish strong accountability mechanisms. However,

the distinction between appropriate political direction from a government to a police force and

inappropriate political interference in operational policing matters is significant, in law, policy,

and practice. Clear delineation of roles, responsibilities and relationships between the police and

the executive laid down in law helps to pinpoint accountability. It also minimizes the possibility

of unfettered interference seeping into policing matters and influencing their functioning.

Countries across the Commonwealth have experimented with various institutions to check

illegitimate political interference. Service commissions are autonomous government bodies that

oversee disciplinary and management matters in police agencies and were established precisely

to limit potential political interference in selection, promotion, transfer, and removal of police

officers. In practice, however, the dominant role of the head of state in many small states in the

Caribbean and Pacific allows them to wield their power in appointing commission members,

providing space for potential political patronage. Newer models of service commissions have

been granted huge powers. Nigeria's Police Service Commission, for instance, is potentially one



66

of the most powerful new commissions in the world. Established in 2001, its membership

includes human rights advocates, women, businesspeople and media persons as well as a retired

Justice of the Superior Court. Coupled with the statutory obligation to establish a complaints

investigation department, as an independent Constitutional body it has the power to discipline,

dismiss, and refer cases for criminal prosecution. The Commission can also formulate and

implement policy. During the 2003 general elections, the Commission collaborated with the

Centre for Law Enforcement

Education Nigeria and the Open Society Justice Initiative to develop guidelines on police

conduct and monitored police behavior. Several countries have also established police boards

and authorities to minimize executive interference in policing and develop policy. Created in

response to a long history of conflict, Northern Ireland's Policing Board is one of the most

powerful bodies of this kind. It is not only responsible for delivering an efficient police service,

but is also mandated to help the police fulfill the statutory obligations in the Human Rights Act

1998. The Board can launch its own inquiries into any aspect of police work even without the

agreement of the Chief Constable, giving it a more active management and oversight role than

most other boards. Serious breaches of law and accountability arise out of inappropriate

relationships of patronage that develop where there are biddable service commissions, no

objective procedures and criteria for the appointment and removal of police chiefs, and

inadequate oversight processes. In countries that practice democratic policing, the appointment

process for instance is more collaborative and requires input from civilian oversight bodies. In

the Australian state of Queensland, the Commissioner is appointed by the Governor "on a

recommendation agreed to by the chairperson of the Crime and Misconduct Commission” with

the approval of the Minister for Police.

Courts also ensure that acts of the executive and laws made by parliament comply with and

promote international human rights standards.4 They also protect citizens from the excesses of

the state and its agents by bringing to book perpetrators of human rights violations and breaches

of law, and by ensuring that victims obtain sufficient redress. Accountability for policing may

require the judiciary to enunciate and lay down standards of acceptable behavior, punish

infractions and, at times, reign in the executive. Judges help maintain high standards of policing

when they throw out cases and refuse convictions because of procedural aberrations - including

arrests without proper cause or warrant, force used to extract confessions, illegal searches and

wrongful recovery of goods. To protect due process where there is persistent misbehavior, judges

may produce their own guidelines and procedures for police.

Parliaments equally have many powers to question police wrongdoing, to correct systemic faults

by passing new laws, to seek accounts of police performance, and to keep policing under

constant review. Opportunities for oversight of police affairs include question time, debates,

drawing attention motions, and private members bills, which, though very often defeated, spur

debate and introduce innovations. Special commissions of inquiry may also be established to

pursue particularly serious concerns. While these devices draw occasional attention to the more



67

dramatic aspects of policing, it is the more mundane, regular features such as departmental

reviews, budget sessions and accounts audits that provide opportunities for thorough examination

of police functioning; and the detailed work in committees that seriously impact on creating a

better service. In South Africa, the significance of committees as vehicles of democratic

governance is well recognized. Committees are empowered to summon any person to give

evidence under oath or produce a document, receive petitions or submissions from any interested

parties, and conduct public hearings.

Internal Accountability

Governments are of course duty-bound to hold the police to account. But it is also the

responsibility of the police themselves to ensure that internal systems guarantee discipline,

performance and all round good policing. Two mechanisms define internal accountability.

The first is the disciplinary environment, which is made up of both the formal apparatus for

censuring misconduct and the informal culture that pervades the establishment. The second is thecomparatively new technique of performance management that aims to assess police efficiency

through target setting.

In their design, internal disciplinary systems are usually comprehensive in structure and scope. If

they were implemented as set out in law and in adherence with the principles of natural justice,

there would be far fewer problems. However, in too many jurisdictions internal accountability

mechanisms do not enjoy the confidence of either the rank and file or the public. The frequency

of bad behaviour and poor performance indicates that internal standard setting and compliance

systems are either badly implemented or deliberately disregarded.

Extending transparency bolsters credibility. In many Commonwealth jurisdictions, figures for the

number of complaints against police officers received and resolved each year are released. Going

beyond figures and telling the stories behind acts of misconduct reinforces the notion that

leaderships will not protect or tolerate misbehavior. In the long run, laying bare the anatomy of

internal mechanisms and outcome builds faith both in the public and within the police. Internal

accountability mechanisms come into play after an act of misconduct. Changing the way police

organisations function - from forces into services where the citizen "customer" is king – requires

regular attention to the whole system rather than being addressed in a piecemeal fashion.

Modern policing systems require modern management structures. Good management is

grounded in principles of good governance and accountability, both individual and

organizational. As modern systems of accountability are based on objective criteria, they reward

merit and professionalism, constantly review performance and quickly repair weaknesses so that

little room is left for misconduct. "Performance management" uses statistics to look at the police

in terms of the results they deliver. The outcomes most often measured are those that address the

issue of police effectiveness, particularly the contribution the police make both to tackling

criminality and creating a safe environment for the public.



68

Typical measures include crime figures or opinion poll data regarding public confidence in the

police. Such data is then used for two purposes: internally as "management information" to help

police leaders focus on improving areas where performance is poor; and externally as a means of

explaining police performance to the public. Both can be powerful accountability tools: the

former as a way of highlighting problems inside the organization (by comparing individuals or

units and by identifying trends, say in complaints against the police); the latter as a way of

expressing the results the police achieve in objective terms, which can then act as the basis for

discussion about how to improve.

Independent Civilian Accountability Agencies

As governments increasingly embrace the philosophy of democratic policing, attempts are on to

make policing more transparent, involve outsiders, build public confidence, allay fears of bias,

assure impartiality of investigation, and make the receipt of complaints easier, reduce abuse of

power and misconduct, change the internal culture and ensure ever better performance. Countries

across the Commonwealth have therefore sought to augment government and internalaccountability systems with other external or civilian – meaning non-police - oversight

mechanisms. It is hoped that these systems will complement existing external mechanisms and

together create a web of accountability from which it is increasingly difficult for police

misconduct to escape without consequences. Variously named5 and designed, such bodies fall

into two broad categories: organizations exclusively dedicated to investigating, reviewing and

monitoring police related complaints; and agencies such as ombudsmen and national human

rights institutions (which are usually called commissions) that have broader mandates. Where

multiple oversight agencies contribute to police accountability, a system of coordination and

referrals carves out jurisdictions and protects against overlapping, duplication and contradictory

recommendations. In South Africa, which has both a Human Rights Commission and an

independent police complaints agency, the Commission refers all police-related complaints to the

latter.

Much of how effectively complaints authorities, ombudsman's offices and human rights

commissions perform their functions once again depends on how truly separate from police and

executive influence they are and how autonomous and well embedded their status is in the

country's legal architecture. Their effectiveness also depends upon the width and clarity of their

mandate; the scope of their investigative powers; the composition and competence of their

leadership and staff; and the adequacy and sources of financing. A particularly crucial factor is

their ability to compel obedience to recommendations and the attention and clear support their

reports and findings receive at the hands of the government and the police. These minimum

requirements have been internationally recognized and summed up in the Paris Principles for

National Human Rights Institutions, but they also apply equally to any oversight agency. The

Commonwealth has also compiled National Human Rights Institutions Best Practice guidelines.

Unfortunately though, not all civilian oversight agencies in the Commonwealth abide by even

these basic guidelines.



69

Commonwealth countries are increasingly aware that the presence of at least one external,

independent civilian agency sends the message that the police will be held accountable.

Civilian agencies that are solely dedicated to dealing with complaints against the police have

been the most successful in holding the police to account. Single focus agencies build up

expertise, investigative techniques and the capacity to analyse patterns of police conduct andevaluate performance. In any case, how ever independent oversight is structured, political will

and strong leadership of both the police and the independent bodies are essential for building a

truly accountable and responsive policing system.

Accountability to the Community

Finally, democratic policing requires accountability to the community that it serves – in other

words, it requires the consent and cooperation of the community being policed - not least

because close connectivity makes policing more effective. People need to feel they can trust the

police and that the police priorities their concerns and will not subject them to abuse orcorruption.

In seeking greater accountability, some civil society representatives engage and some confront,

and some do both depending on the circumstance. Experience has shown that it is essential to

confront those in power with hard evidence of policing problems, rather than unsubstantiated

statistics and easily dismissed anecdotal stories. Civil society groups traditionally seek

accountability by documenting patterns of police abuse. They are also increasingly using

international forums for naming and shaming which creates deep embarrassment at home.

Sustained support for reform and accountability comes only when there is a broad domestic

constituency that understands and supports the concept of responsive and accountable policing.

Many groups therefore sensitise the police and educate the public, including providing legal

awareness about constitutionally guaranteed freedoms, rights on arrest, rights of special groups

like indigenous people, the disabled, gays and lesbians, and the steps to take when police

overreach their powers. Victims groups give a human face to the problem of unaccountable

policing and have been important catalysts in shaping public opinion. The media's enormous

influence in developing public opinion has prompted many groups to train media personnel on

the intricacies of policing. Without analysis of how police accountability can be brought about,

the public is deprived of a platform for informed progressive debate and advocacy.

Creating political will requires constant engagement. Timing is vital. Opportunities abound: from

getting police reform into political manifestos at election time; holding winners to their

promises; providing submissions to parliamentary committees; to intervening at all levels of the

law making and scrutiny processes where police functioning and performance are up for

discussion. Advocates have sought ratification of treaties, the creation of oversight bodies, and

enactment of laws that enhance accountability and transparency such as right to information,



70

whistle-blower protection, and anti-corruption. At the very least, civil society groups demand the

right to participate in policy processes and community safety.

Concerns about safety and security have pushed governments to relocate policing more firmly

within local communities. More and more countries are experimenting with "community

policing". While some, like South Africa, UK and Canada, have institutionalized this throughlaw or entrenched practice, most are still testing its use. Community policing essentially

"signifies a collaboration between the police and the community, which identifies and solves

community problems".7 Several factors determine success: traditionally centralized police

organizations are required to shift decision-making and responsibility downward and recognize

that it is front-line officers who have to make the new community policing approach work.

Police and public have to interact as equals and with a sense of shared values. In societies where

power relationships are extremely uneven, community policing has to consider diversity and not

be hijacked by dominant groups, otherwise there is a danger that already marginalized groups

will be further victimized by the alliance between police and local privilege.

Despite the mixed reception for police reform initiatives across the Commonwealth, there is

room for optimism. Growing global concern with crime and security has created fertile ground

for new dialogues about police performance and accountability. As more people feel insecure

and unsafe, they become interested in knowing how the government and the police plan to

protect life and property and the need for deeper engagement between the government, police

and the community becomes more urgent.

CONCLUDING RECOMMENDATIONS

CHRI makes a series of priority recommendations to different target groups:

Commonwealth Heads of Government must:

In their CHOGM communiqué:

recognise that the Commonwealth principles of accountability, transparency, participation,

adherence to the rule of law, respect for diversity and democratic functioning apply to the

security and justice sectors, including police organisations;

explicitly acknowledge that democratic policing is crucial to realizing democracy and

development;

commit the Commonwealth to developing Commonwealth Principles on Policing drawn

from its core principles and international standards; and

undertake to apply these principles to policing in their own countries.



71

Mandate the Commonwealth Secretariat to further better policing through:

providing member countries with technical assistance to reform laws, craft institutional

arrangements and adopt practices that will eliminate abuse, corruption and ensure better

accountability;

providing the Human Rights Unit with adequate resources to engage with police

organisations, focusing on adherence to human rights standards;

undertaking a series of Commonwealth-wide exchanges for police ministers, police

personnel, experts and civil society designed to encourage the spread of good practice in

democratic policing; and

catalyzing the formation of a Commonwealth Association of Police Officers that can

mutually assist and share ideas

In addition, Heads of Government must:

Solemnly agree to ratify international human rights treaties within a finite time frame and

develop a mechanism at CHOGMs to report on and monitor implementation of past

commitments.

Affirm compliance with the standards of policing required by the International Bill of Rights, the

UN Code of Conduct for Law Enforcement Officials, and the UN Basic Principles on the Use of

Force and Firearms.

Member countries must:

Acknowledge that it is the foremost duty of a state to ensure people's right to safety and security

and thereby to provide a police organisation that is efficient, effective and adheres to the rule of

law. Review and recast police laws, rules and regulations, especially those that pre-date the

1948 Universal Declaration of Human Rights, so as to incorporate and further the principles of

democratic policing. Re-examine internal security laws to minimise the possibility of impunity

and remove obstacles to prosecution or victim compensation and civil suits for police

wrongdoing.

Protect whistleblowers from harm and victimisation through legislation and supportive systems.

Strengthen traditional executive, legislative, and judicial oversight of police; and put in place and

support multiple additional independent civilian oversight mechanisms, such as an ombudsman,

human rights commission, anti-corruption body or dedicated police complaints agency as

appropriate.



72

Ensure - through institutional arrangements such as strong, autonomous police service boards,

commissions and authorities - that executive oversight does not illegimately interfere with

operational independence of the police.

Publish annual performance targets and evaluation measurements against which adherence to

human rights, value for money, performance and community satisfaction can be publicly judged.

Design transparent and merit-based procedures that can be measured against objective publicly-

known criteria for representative and non-discriminatory recruitment, selection, and appointment

of leadership and rank and file.

Ensure good service conditions for police and fair accountability procedures applicable to all.

Initiate, in collaboration with police organizations, procedures and mechanisms designed to

involve civil society groups and the community at large in creating policy, determining priorities,

setting targets and evaluating performance.

Re-examine, in collaboration with police organizations, training content, methodology and

frequency to emphasize human rights awareness.

Police leaders and police organizations must:

Ensure that upholding the rule of law and protecting human rights and democratic values are

core values of policing integrated into its vision, policies and procedures, reinforced through

training, and demonstrated in its work.

Send a strong signal to all within and outside that as an organisation of high professional

standards, the police will perform well, be open and approachable, and not tolerate abuse of

power, corruption, neglect of duty, suborning the law, or any misconduct, nor will it protect

wrongdoing.

Ensure that internal accountability mechanisms are well resourced and are fair and firm, enjoying

the support and confidence of the public as well as police personnel. Cooperate with external

oversight mechanisms.

Ensure that the police organization is representative of the population it serves; in particular by

improving the representation and retention of minority groups and women, ensuring the work

environment is suitable to their particular needs and providing equal career opportunities to all.

Ensure maximum possible transparency to build public confidence in the police and trust in

police-community relationships.



73

Civil society must:

Equip itself to campaign for police reform and accountability by understanding the police, its

environment, relevant laws, its resources, responsibilities and that of the government and

oversight bodies.

Assess police functioning in accordance with national and international standards and

continuously challenge and draw attention to police wrongdoing.

Demand and publicly disseminate information about policing to create a democratic discourse,

participate actively in policy processes and public debates on policing issues to challenge the

perception that policing is a technical issue only to be discussed by those in uniform.

Engage in partnerships with the police to bring about community involvement and improve

community safety.

Donors must:

Require that accountability and human rights issues be integrated into all donor-supported police

reform programmes.

Take firm measures against recipient governments that use police to curb civil liberties and

consistently do not adhere to international human rights standards in practice.

ENDNOTES

1 This section is adapted from Bayley, D. (2001) Democratising the Police Abroad: What to Do

and How to Do It , National Institute of Justice, US Department of Justice, Washington, pp 11-15; Bruce D. and Neild R. (2004) The police that we want: a handbook for oversight of police in

South Africa, Center for Study of Violence and Reconciliation, Johannesburg, and Open Society

Justice Initiative, New York; and Stone, C. E. and Ward H. H.(2000) Democratic policing: a

framework for action, Policing and Society, Vol. 10, number 1, p 36.

2 Chukwuma, I. (2005) "The Future of Police Reform in Nigeria", Justice Initiatives, OSJI, New

York, 1 February 2005, p. 12: http://www.justiceinitiative.org/db/resource2?res_id=102523 as on

25 May 2005

3 Section 4.2(1), Police Service Administration Act 1990 (Queensland, Australia)

4 Zeitune, J. (2004) International Principles on The Independence and Accountability of Judges,

Lawyers and Prosecutors: A Practitioner's Guide, International Commission of Jurists, p. 1

5 Independent Police Complaints Commission, England and Wales (UK); Police Integrity

Commission, New South Wales (Australia); National Police Commission, Sri Lanka;

Independent Complaints Directorate, South Africa; Police Ombudsman of Northern Ireland;



74

Commission on Human Rights and Administrative Justice, Ghana; and National Commission on

Human Rights and Freedoms, Cameroon are some of the different names for civilian oversight

mechanisms in the Commonwealth.

6 See United Nations et. al, (1993) Principles Relating to the Status and Functioning of National

Institutions for Protection and Promotion of Human Rights (Paris Principles):http://www.ohchr.org/english/about/publications/docs/fs19.htm#annex. The Principles state that

institutions must be independent and that this is guaranteed by statute or constitution;

autonomous from government; plural and diverse, including in membership; have a broad

mandate which is based on universal human rights standards; have adequate powers of

investigation; and have sufficient resources to carry out their functions.

7 Bureau of Justice Assistance (1994) Understanding Community Policing: A framework for

action, http://www.communitypolicing.org/eleclib/pdffiles/commp.pdf as on 5 January 2005d

fast rule about the form that good police accountability must



75

EDUCATING COMMUNITIES ABOUT HOW TO BE POLICED IN A

DEMOCRACY

(This is a Consolidated Response prepared by the International Network to promote the Rule of

Law with the contribution from Major Moayyad Abzakh, David Bayley, Robert Bereiter, Art Crosby, Elizabeth Kunce-Wagner, Otwin Marenin, John Nikita, Gordon Peake)

Background:

The police face major problems building legitimacy in countries emerging from conflict where a

uniformed officer is often a cause for fear rather than a source of protection and comfort.

Typically, politically motivated crimes are never investigated by the police. Strategies to reform

the police must be supported and sustained by community support and assistance, beginning with

education about the values and processes involved in democratic policing.

Query:

What effective methods are in place for educating the civilian community on "How to be policed

in a democracy"? How do you transition from a police force oriented toward the use of "force" to

one that is focused on "public service"? How does the community hold the police accountable

and make them responsible for upholding democratic principles, the rule of law, and human

rights.

Response Summary:

To educate communities in “How to be policed in a democracy,” in countries emerging from

conflict, the philosophy and strategies that have been used for democratic and community based

policing are relevant. Community policing seeks to inculcate the following democratic policing

principles into standard practice:

Maintain a degree of social order that makes a peaceful democratic society possible (i.e.

mediating in the day-to-day disputes that result from inter-personal and inter-group

conflicts).

Safeguard the individual right to life, personal security and enjoyment of property.

Ensure law is enforced within the bounds of justice, through equality, fairness, impartialityand the exercise of discretion.

Respond to and assist those in need or those who cannot care for themselves. This principle

recognizes the humanitarian and social side of the police function and responsibility to the

community.





77

What are the current accountability structures for police misconduct? Do they function? Are

they well known, transparent, and trusted by the public?

What is the present attitude within the police force toward democratic and community

policing? What are the current practices, if any, that are utilized to build trust between the

police and the community?

In the aftermath of conflict, the result of this assessment is liable to reveal that the existing police

force operates in a political context that is hostile to democratic policing, either because the

police have been militarized, politicized or criminalized, perhaps all three. Civil society is apt to

be weak or non-existent and incapable of serving as a check on the abuse of state power. These

are not propitious circumstances for police reform, but international police advisors and mentors

will have a mandate to undertake to change this. The mandate should allow international police

to play a leading or at least a supporting role in demilitarizing, depoliticizing and/or

decriminalizing the role of police. Checkpoints should be eliminated, as should fees for basic

services such as applications for licenses. A corollary to this is the necessity to pay police aliving wage. If international police fail to obtain results in police reform, efforts to educate the

public about democratic policing might succeed in mobilizing civil society to demand reform,

but they are unlikely to empower them to effect such change.

Effective, impartial, and ethical performance is the most effective way to educate the public

about the role of police in a democracy. To help ensure that police performance is not at odds

with the rhetoric of the public education campaign, the following measures may be effective in

educating the public about the role of police in a democracy and effectively transforming lawless

rule into rule of law:

Establish community advisory boards to give the local community a role in selection of

candidates to be police officers, setting standards they are to uphold, and the manner in

which they are trained. Establish community crime watch and citizen police academies to

develop local partners and new leadership within the local community.

Community engagements described in the next section are recommended as a starting point.

Well-established relationships can lead to community cohesion and accountability in support

of a properly functioning rule of law system. Civilian oversight mechanisms have pros and

cons. They can be costly and unsustainable. The cost could divert funds away from training

and education and the establishment of a well-staffed and organized Internal Affairs officewith an early warning system that is designed to support and promote the overall wellbeing

and professionalism of the law enforcement officer. They can be more reactive than

preventive in nature and a political feel-good measure for the community but may not

necessarily change the overall relationship with law enforcement.



78

Seek out human rights organizations (international and local) and encourage them to work

together to advocate for democratic policing that is oriented toward community service and

accountability to the citizenry. Work with them to establish open lines of communication

with police leadership that will provide the foundation for their involvement in advisory and

accountability structures. If there are no local human rights organizations, work with

international human rights groups to encourage their development.

Work with partners in the international donor and NGO communities to get the message out

that the police should be part of the community and responsible and accountable to the

community. Identify educational, developmental and humanitarian projects that the police

collaborate with to educate the public abut the role of the new democratic police force.

Work with the press to get the message out on the use of force policy and the primacy of

community service for police. Hire experienced public affairs professionals to deal with

media relations at the ministry level and in the major media markets across the country.

Conduct regular press conferences and, when important events occur, convene ad hocsessions to discuss major cases and highlight the new police role.

Engage the youth in the public education campaign through the educational system. Train

"school liaison officers" whose specific function it is to maintain contact with schools,

explain police practices, stress their availability and address security issues that students may

have. Arrange visits by school children to police facilities.

2. Establish a supportive relationship between the police and the public

The most effective means of educating the public about how to be policed in a democracy is

through exposure to and interaction with police who respect democratic principles. Community

policing is designed to engender a mutually supportive relationship through the following

practices:

Develop committees comprised of local political leaders, community elders, business

owners, school officials, student representatives, and social workers to meet regularly with

police to identify local public order and individual safety concerns, collectively develop

solutions, implement alternatives, and assess results.

Assign community police specialist to specific neighborhoods, villages and towns with the

responsibility to patrol, become familiar with the people, and respond to their needs.

Live in and become part of the community where the police station is located. organize visits

to the local police station to let the public talk to police and observe what they do.

Patrol on foot or bicycle whenever possible.



79

Visit people in their homes and places of work to develop and cultivate a bond of trust

between the people and the police. Assist victims and those who are potential victims of

crime, especially minority group members and the elderly, by attempting to visit these people

to assure them of some degree of security by your presence and attention.

Visit schools and speak to students and teachers about democratic policing and the way it isaddressing local concerns, including peaceful relations between identity groups that had been

associated with the internal conflict. Solicit feedback.

If you have a specific skill, such as sports, volunteer to coach or organize community events

involving the police (e.g., soccer games). Sponsor activities that are helpful for the local

community (e.g., sporting events, charitable activities, environment protection).

Undertake surveys of public confidence in complaining to the police and sponsor tests of the

police complaint mechanism to see if complaints are readily accepted and lead to appropriate

action.

Start only those initiatives that can be sustained after you leave. International advisors and

monitors will need to inculcate in the hierarchy and rank and file of the local police force an

enduring commitment to building a bond of trust and working relationship with people.

3. Educating the community about how to hold the police accountable

If the community does not have experience holding the police accountable, and they neither

expect nor enjoy transparency, the first two steps described above will be crucial to establishing

the conditions under which a functioning accountability system for police misconduct can be

instituted. Public education cannot substitute for unwillingness by the police to be heldaccountable.

Among the concepts that need to be understood in educating the public about how to hold the

police accountable and make them responsible for upholding democratic principles, the rule of

law, and human rights are the following:

What is public service? How can I obtain public service?

What are my rights and responsibilities as a citizen and what are the roles and functions of

police officers? Courts? Prisons?

How do I know when the police are abusing their authority or violating the principle of

public service? When should I assert my rights?

How do I report police misconduct? (It should be possible to submit complaints

anonymously, without going to the police in person, and the results of investigations should

be made public.)



Who can I go to for help if I fear that I will face police retaliation?

Note: All opinions stated in this consolidated reply have been made in a personal capacity and

do not necessarily reflect the views of particular organizations. INPROL does not explicitly

advocate policies.

Date post:	29-May-2018
Category:	Documents
Upload:	priyanka-tisseverasinghe
View:	227 times
Download:	0 times

Policy Paper on the Right to Rule of Law

Documents