A statement on elimination of corruption and executive control of judiciary in Asian Countries

Basil Fernando – Asian Human Rights Commission

The purpose of this statement is to initiate informed discussions on JC with the view to improve the discussion on this issue, to make this discussion a regular part of the discourse on rule of law, human rights and democratization; to influence and improve public opinion on this matter so that lobbying for changes will improve; to make JC regular topic in human rights education in the region.

The purpose of this statement:

Areas that need to be covered:

  • Causes of JC
  • Stating details of the manner in which corruption take place
  • Stating consequences of JC
  • Making recommendations for prevention of corruption and making the necessary changes in order to make such preventive measures relating to law and implementation.

Definition of JC and EC

Definition should also cover investigation and pre-trial processes in addition to the actual trial process

JC is any act or omission from any source whether bribery or intimidation or any other act with the intention that judicial or quasi judicial orders, judgments and other issuances and judicial treatments are made in line with intended and/or reasonably foreseeable result of corruption/ Acceptance of patronization offered by the people in power/ leading to subversion of the administration of justice causing bias

Causing unfairness in the criminal process from very start of process to end

Alt Def.

JC pertains to acts or behavior that impairs the search for and submission of the truth for the delivery of justice

Causes – some examples

  • [Wrong modes of selection of judges
  • Inadequate remuneration
  • Deliberate politicization of the judicial process to the detriment of due process
  • Deliberate attempts to undo the due process and to create an arbitrary system that can easily be manipulated to deprive the people the legal means of dealing with their disputes and thus demoralize the people in this area.]
  • Pressure from hierarchy on lower judiciary
  • Politicized methods of selection/appointment, transfer, dismissal and disciplinary control of judicial officers
  • Calling upon judges to perform functions and duties other than of a judicial nature
  • Factors that cause insecurity and fear among judges
  • Constitutional provisions that provide scope for jc and ec
  • Structural and systemic causes: appointment of judges by executive and endorsed by politicians, cultural value of debt of gratitude, favoring of private property as against the right to vote
  • Offering and acceptance of extrajudicial positions to sitting or retired judges
  • The lack of adequate disciplinary procedure for higher judiciary/and other judicial officers (ombudsman) apart from impeachment, which causes absolute impunity for judges
  • Failure to take prompt disciplinary action on misconduct of judicial officers/complete absence of disciplinary process
  • Non attendance to complaints regarding individual indiscipline among judicial officers
  • Lowering disciplinary mechanism for the higher judiciary such as the method of impeachment
  • Lack of adequate mechanisms to deal with financial pressure
  • Institutional favoritism
  • Lack of checks and balances leading to proper assessment of judiciary
  • Lack of law on contempt of court giving the opportunity for judges to exploit or abuse this power; contempt of court used as sword
  • Absence of impartial case management/bench fixing
  • Lack of separation of judiciary from executive
  • Inadequacies of competence of judges, defects in training process, lack of courage on the part of judges
  • Inadequate public monitoring including public discussion on judiciary
  • Lack of space for critical discussion on court judgments
  • Difficulties in proof leading to impunity
  • The attitude of judges being in favor of powerful elements as against the poor and marginalized
  • Lack of reform of criminal procedural laws in terms of human rights standards
  • Involvement of the bar with the bench and taking part in non professional activities, including social and religious activities
  • Relatives of judges practicing in the same courts
  • Judges hearing cases despite having conflict of interest
  • Judges hearing cases of friends/relatives
  • Wide discretion without guidelines for sentencing and the like
  • Lack of expertise in judges dealing with complicated cases where special and technical knowledge is required
  • Lack of Ombudsmen procedure in court proceedings
  • Lack of protection for whistle blowers
  • Lack of ethical disciplinary procedures with the possibility of participation by civil society
  • Lack of publicly available information on court process and proceedings
  • Inadequate remuneration for court staff thereby leading them to be engaged in influencing judges by undue means and gaining profit thereby
  • Lack of adequate legal aid, especially for foreigners, minorities (lack of interpretation facilities)
  • Lack of civil participation in judicial procedure, eg. Absence of juries
  • Defects of investigating bodies leading to injustice in adjudication and lack of accountability in that matter
  • Inadequacies in technical aspects of evidence such as forensic facilities which gives rise to many possibilities for corruption
  • Inadequate protection for female staff working in courts, leading to close relationships with judges, police
  • Delays in adjudication process
  • Absence of expert witnesses, eyewitnesses and the legal procedure allowing judgments being made without evidence led in court
  • Lack of facilities for courts to function effectively (fax machines etc)
  • Extension of tenure of office beyond pensionable age thereby creating possibilities by authorities to give further extension
  • The offer of various perks making way for political influence in judicial process
  • Adequate measures for protection in their retired life for judges so that they will not undertake other assignments for profit
  • Emergency and anti-terrorism laws take over normal powers of the judiciary, giving rise to corruption and political manipulation
  • Deprivation of judicial review and bringing down of judicial powers thereby their importance in the constitutional process is undermined by the judges being incapacitated from performing some of their most fundamental functions of interpretation of laws
  • Limits on retrials culminating in miscarriages of justice
  • Retrospective legislation
  • Judicial arrogance which obstructs the due judicial process
  • Courts being overloaded with work

Details in the manner of corruption:

  • [Bargaining about judgments with the view that judicial officers can benefit from making orders
  • Taking orders from political masters; by accepting rewards or being intimidated by punishments from political authorities (also post retirement)
  • Higher judicial officers giving orders to lower judiciary as to the way the cases must be decided
  • Forcing unprincipled settlements
  • Intimidating lawyers by direct or indirect means to prevent them from providing proper services to clients
  • Not following procedures of making and writing judgments in order to refuse application in arbitrary manner
  • Manipulation of the authorities that have the power of appointment, transfer, promotion and disciplinary control of judges etc.
  • Delays in adjudication process]
  • Misuse of judicial discretion as a cover for conclusions arrived at by corrupt means
  • Threats and executions of judges
  • Devoting judicial time for other matters
  • Not sitting at required times and paying little attention to the rights and conveniences of litigants and lawyers
  • Handing over judicial functions to non judicial officers like assistants or other lawyers
  • Violating the principle of having cases in open court and using more secretive methods
  • Favoring individual lawyers or lawyers' cliques
  • Making judgments without reading of evidence
  • Deciding cases purely on technical issues without going into substantive matters, particularly in public interest issues
  • Making false travel claims and traveling with others like police officers who have matters to deal with in courts
  • Lower court abusing their powers to subvert the appeal process and the powers of summons
  • Unnecessarily loading the court trial role by fixing more cases than what the court can hear
  • Not recording exactly what the witnesses say. And then the judges dictating the witness statement leaving room for omissions and additions
  • Not recording the motions and applications (request made by counsel in court record.) This can lead to denial of making of such applications or misinterpretation of the nature of such applications
  • Using judges' discretion for interpretation in subjective manner to favor parties
  • Charging particularly the poor over and over again on the same charge with the view to harass and intimidate the persons
  • Prosecutors abusing their prosecutorial powers to prosecute those who should not be prosecuted or not prosecuting those who should be prosecuted
  • The prosecutor's function being exercised by the police who tend to abuse the process for earning money or are not competent to prosecute properly
  • Meetings of one party prior to hearing by the judge
  • Judges and prosecutors putting leading questions to defendants to prevent them from presenting exhaustive evidence or challenging the evidence presented against them
  • Not giving equal opportunities to all parties to a case to present their positions in the manner they wish
  • Judges or court officers such as registrar requesting monies to be personally deposited as rewards for judgments
  • Not disqualifying themselves from hearing cases when there are relationships or previous orders showing partiality
  • Attempting to settle cases out of court at the mediation of the presiding judge of the court before whom the case is being tried
  • Creating pressure for disposals by higher court by setting targets which are impossible to achieve. This often leads to unfair dismissal of cases
  • Misinterpreting of evidence in fact finding process in order to suit prior arrived at conclusions
  • Excessive interruption of trial disfavored party's case
  • Use of previous personal history or criminal record in the trial of new case
  • Judge obtaining files only from one side so that he is aware of case only from one side
  • Judge should not take the role of the prosecutor during trial
  • Lack of consistency in rules relating to granting of bail and this leads to abuse
  • Lack of efforts to pursue those who evade court after getting bail for corrupt reasons
  • Exclusions of parts of complaints and investigating parts of complaints, excluding other crimes on the part of the accused
  • Magistrates not observing rules relating to medical examinations of torture victims thereby paving way for police to take part in corrupt practices
  • Making judicial orders for remand without persons being produced before a magistrate
  • Despite of common knowledge about police corruption, magistrates give preference in believing versions of cases given by police
  • Judges being placed closer to localities where they have their properties and residences
  • Allowing judges to continue in the same stations for long periods of time
  • Judges and their family members keeping links with undesirable circles
  • Criminally investigating essentially civil matters
  • Failure to apply international human rights law despite of international law forming part of local law through ratification and customary law
  • Despite existence of laws not creating investigation authorities to investigate such crimes thereby preventing prosecution
  • Partiality towards police and other authorities as against other citizens
  • Admitting to the case file evidence gained through unconstitutional means and in violation of human rights
  • Ethnic, racial, gender or religious bias of a judge
  • Judges proceed through cases without giving fair hearings to all parties
  • Rendering decisions without evidence to the effect in the court record
  • Creating obstacles to lawyers from one party to discharge their obligations
  • Biased selection of expert witnesses
  • Superior judiciary bullying the lower judiciary
  • Bringing unfair actions against judges without any real basis in order to assist friends or to intimidate judges
  • Due to limitations in the law, judges cannot proceed to hear cases even in serious crimes and the police and the prosecutors can use this for corrupt gain
  • Judges taking part in court auctions
  • Judges manipulating the auction process in favour of their friends, relatives or those who have paid bribes
  • Absence of independent investigation mechanism to investigate cases involving police torture
  • Ignoring the recommendations of international human rights bodies favouring executive authority
  • Subscribing to the political view even if the challenge is on a constitutional right
  • Ineffective confiscation processes of monies or properties obtained through corruption
  • Lack of public audits of the properties of judicial functionaries
  • Judges hearing retrial cases abuse their powers and reverse cases without proper basis
  • Obstructing the enforcement and execution of judicial orders
  • Larger political and social forces that obstruct the independence of the judiciary and compel judges to give orders not on the basis of evidence but on the basis of pressure

Consequences:

  • Unjust judgments
  • Creating disillusionment and demoralization among citizen, people and lawyers
  • Development of a corrupt mentality in some lawyers
  • People giving up the desire to peruse their cases in courts
  • The dispute settlement among people taking more to direct physical confrontation including also the use of criminal elements instead of courts for dispute settlement
  • Development of a state of disorder and chaos and thus destroying the very foundations of a civilized nation
  • Creating a culture of impunity by placing human rights violators far from the reach of human rights victims / far from justice
  • Creating loss of memory of law on issues such as constitutionality and legality
  • Causing serious detriment to the development of the nation
  • Breeds criminality and the destruction of the social fabric
  • Breeds and cultivates corruption in all other sectors of society
  • Creating a situation of utter hopelessness, resignation and cynicism
  • Weakening peoples' power which should exist under the constitution and by way of other rights
  • Marginalize minorities and weaker sections of society
  • Creating a fear psychosis
  • Making rational ways of life impossible
  • Weaker sections being denied a fair deal
  • Inducing resorting to violence and the use of force
  • Impairs or destroys the predictability of law, public confidence in courts and judges, other institutions and the state itself
  • Leads to successive and lengthy appeals
  • Creates tyranny
  • Bringing up of new generations without any practical understanding of justice
  • Displacing the reason for the existence of courts, therefore destroying the separation of powers and creating authoritarianism
  • Failure to attract persons with principles and quality to become judicial officers
  • The weakening of the state and its credibility before the international community
  • Denial of justice for victims

Recommendations:

Two kinds – direct recommendations about the elements needed for a better system &

recommendations about how movements and lobbying efforts must be made about this issue.

Use of electronic means for recording evidence