30 August 2019 - There is global consensus that the core conduct characteristics necessary for an effective and principled judiciary are independence, impartiality, integrity, propriety, equality, competence and diligence. Most judiciaries have formally pledged to uphold these principles, laid out in detail by the Bangalore Principles of Judicial Conduct, one of the basic documents through which the Global Judicial Integrity Network promotes the rule of law.
Despite many judiciaries' best efforts to sustain lawfulness, however, potential impediments can hinder judges' ability to carry out their functions; this can come through pressure of various kinds, both intended (as a deliberate attempt to influence judges) and unintended (through circumstances which may lead judges to be restrained in their decisions).
These impediments have recently given the concept of judicial immunity increased attention in circles which consider the role of justice in society and carry it out, especially in times of political and social turmoil. In order to delve deeper into the matter, the Global Programme for the Implementation of the Doha Declaration, whose projects all contribute to the propagation of a culture of lawfulness, held an expert group meeting this week at UNODC's Vienna headquarters to explore the different types of judicial immunity, the ramifications it may have on judges and on society, and the ways to continue strengthening judicial integrity through them.
For two days, senior judges and international judicial experts from 12 countries and 11 judicial associations and organizations debated the aspects contributing to judges' ability to dispense justice without constraint, and therefore with immunity. These discussions will be the basis to further develop a paper analyzing the elements that help build judicial integrity and independence, and exploring how immunities (such as immunity from a suit for damages for a judicial act, the security of a judge's tenure, the rights of judges and their work conditions) can positively contribute in safeguarding the fundamental principles of judicial conduct.
While all experts agree on the necessity of shielding judges from consequences of decisions they have made in good faith and in accordance with accepted judicial integrity principles, they also agree that such immunities needed to be better defined, and better communicated to the public. Indeed, "judicial immunity must be a shield for the community, not a sword against it," explained one senior judge. "Judicial immunity must not be seen as a carte blanche," explained another, "nor be conflated in the mind of the public with judicial impunity."
Professional immunities in various fields (such as diplomatic or parliamentary) are meant to provide protection from third parties' interference, influence or obstruction. In the particular case of judicial immunity, perhaps less known or understood by the people it is supposed to affect, experts agreed that a better communication to the public of the concept of judicial immunity was necessary to protect the reputation and the perception of the judiciary, and to maintain the trust of society. As one judge commented, "sometimes as judges we don't indicate clearly enough that we are concerned not for ourselves, but that we are functioning properly for the public. It's important for them to recognize that the other side of the coin is transparency and accountability."
Of course, the immunity of judges in their judicial capacity (and not in their private capacity) is already implied in the Bangalore Principles, as described in Principle 1.1: "A judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter of reason." In other words, judges need protection from all and any factors which would remove their ability to exercise judicial functions in a normal manner.
These matters will be elaborated in the paper and further discussed in the upcoming Second High-Level Meeting of the Global Judicial Integrity Network: Past, Present, Future, to be held in Doha in November 2019, in which hundreds of senior and chief justices, judges and justice sector stakeholders are expected to participate.