With dignity, grace and charm, Judge Weeramantry presided over a group of powerful judicial personalities of many nationalities. His indomitable spirit led them to achieve the objectives they sought.
by Dr. Nihal Jayawickrama
( January 24, 2017, Colombo, Sri Lanka Guardian) In all the tributes paid to the late Judge Weeramantry, no reference appears to have been made to the pivotal role he played as Chairperson of the Judicial Integrity Group that developed the universal code of judicial conduct.
In the late 1990s, credible evidence began to surface that people in many countries, on many continents, considered their judicial systems to be corrupt. Those who participated in public perception surveys considered the judiciary to be only somewhat less corrupt than the police. Litigants who responded in service delivery surveys claimed to have paid bribes to court officials, judges, and in a South Asian country, even to the opponent’s lawyer. A presidential commission of inquiry into corruption in an African country reported that corruption in the judiciary was so widespread that the ordinary citizen had no faith in the judicial system, with many believing justice was only for those with money. In Sri Lanka, judges who responded in a direct mail survey reported at least three incidents of bribery involving judges and relating to the delivery of judgments.
I was then functioning as Executive Director of Transparency International at its secretariat in Berlin. We took the initiative to speak with judges, lawyers, academics, justice ministry officials, members of parliament and civil society representatives. They all agreed on the need to formulate and implement a concept of judicial accountability without eroding the principle of judicial independence. The challenge was to determine how the judiciary could be held to account in a manner that was consistent with the principle of judicial independence. How does one achieve the right balance between autonomy in decision-making and independence from external forces on the one hand and accountability to the community on the other? These were issues that were best resolved by the judges themselves.
Accordingly, in early 2000, UNCICP Vienna agreed to host a preparatory meeting of Chief Justices from common law countries who spoke a common legal language, to discuss this issue. The Chief Justices I communicated with – from South Africa, Nigeria, Tanzania, Uganda, Sri Lanka, India, Nepal, Bangladesh – and the longest serving judge in Australia, Justice Michael Kirby, all agreed to attend this meeting, as did the UN Special Rapporteur on the Independence of Judges and Lawyers, Param Cumaraswamy and the Chairman of the UN Human Rights Committee P. N. Bhagwati, former Chief Justice of India.
We were then faced with a very sensitive problem. Who should preside at this meeting? Would the choice of an Asian Chief Justice offend their respected colleagues from Africa? Would the choice of a white Australian Judge offend everyone? It was at that stage, after consultation with my UN colleagues, that I contacted Judge Weeramantry, Vice-President of the International Court of Justice (ICJ). He agreed and his leadership was accepted unreservedly by all the participating Chief Justices. At its first meeting, the Judicial Integrity Group (as this group came to be known) agreed that the principle of accountability demanded, initially, a universally acceptable statement of the core judicial values which were capable of being enforced by the judiciary.
At the request of the Group, I prepared a draft statement of principles of judicial conduct. It drew on rules and principles already articulated in national codes of conduct (wherever they existed), and in regional and international instruments. When we met in Bangalore in 2001 to consider the draft, Judge Weeramantry placed the work of the Group in the context of other developments of international law. He emphasized the universality of the expectation of judicial integrity. He explained that it was important to be alert not only to financial corruption but also to intellectual corruption, given the choice which judges have to make in the discharge of their judicial duties.
Over the next twenty months, the text of a document that came to be known as the Bangalore Draft was disseminated among senior judges of both common law and civil law systems in over 75 countries. It was discussed at several judicial conferences at which Judge Weeramantry, Justice Kirby and I participated. It was reviewed by the Consultative Council of European Judges in Strasbourg. It was translated into several Eastern European languages and commented on by the Constitutional Courts of those countries. Finally, in the light of the comments and criticisms received, the draft was revised. By then, Judge Weeramantry’s term of office on the ICJ had ended.
As 2002 drew to a close and we were discussing how best to proceed to the next and final stage, Judge Weeramantry returned to The Hague as an Ad Hoc Judge of the ICJ. Insisting that the draft code, when adopted, should be one that was universally acceptable, he made three proposals. The first was that the final meeting be held in the Peace Palace at The Hague, the seat of the ICJ. The second was that we should invite a representative group of Chief Justices of civil law countries. The third was that we should also invite the Judges of the ICJ.
Accordingly, in November 2002, a Round Table Meeting of Chief Justices drawn principally from the civil law system – Brazil, Czech Republic, Egypt, France, Mexico, Mozambique, Netherlands,Norway, and the Philippines – at which several Judges of the International Court of Justice – from Madagascar, Hungary, Germany, Sierra Leone, United Kingdom, Brazil, Egypt and the United States – also participated, was convened in the historic Japanese Room of the Peace Palace, chaired by Judge Weeramantry. Unlike at previous meetings of common law judges, the working languages at this meeting were English, French and Spanish. The participation of judges from legal systems other than of the common law also meant the absence of a common legal language. However, the consummate chairperson that he was enabled Judge Weeramantry to complete the proceedings within two days, having achieved a consensus on several disputed issues. From this meeting emerged The Bangalore Principles of Judicial Conduct which identified six core values of the judiciary: Independence, Impartiality, Personal Integrity, Propriety, Equality and Competence and Diligence. The document then proceeded to state the principle derived from each value, followed by more detailed statements of the application of each value.
Judge Weeramantry was insistent that we should endeavour to have the Bangalore Principles adopted by the United Nations as the global standard. That was an almost insurmountable challenge. An instrument not drafted by representatives of governments had never been accepted or endorsed by the United Nations. The fact that it had been prepared under UN auspices was of no relevance. The memory of the events of the 1980s, when two parallel attempts were made to draft the Basic Principles on the Independence of the Judiciary, was still fresh in our minds. One attempt was by the UN Crime Committee in Vienna comprising representatives of governments, and the other in Geneva by the UN Sub-Commission on the Prevention of Discrimination and the Protection of Minorities comprising human rights experts. The latter prepared a much more comprehensive statement of principles than the government representatives. The two streams did not converge in any real sense, and the UN at that time ruled that standard-setting was “the business of governments, and not of experts”.
The first attempt to reach the General Assembly was made in 2003 by the UN Special Rapporteur when he attached the Bangalore Principles to his annual report to the Human Rights Commission. That effort met with mild success. The Commission merely “noted” the Bangalore Principles. The next effort produced spectacular results. In April 2005 on the initiative of UNODC, the Economic and Social Commission in a resolution adopted without a vote, acknowledged the “important work carried out by the Judicial Integrity Group” emphasized that the Bangalore Principles of Judicial Conduct “represent a further development and are complementary to the Basic Principles on the Independence of the Judiciary” and invited Member States “to encourage their judiciaries to take into consideration the Bangalore Principles when developing rules with respect to the professional and ethical conduct of members of the judiciary”. ECOSOC also invited the Group to develop a Commentary on the Bangalore Principles.
With the assistance of Justice Kirby, I prepared the draft commentary. When I submitted it to Judge Weeramantry, he pointed out that we should demonstrate that contemporary judicial values were drawn from the great religious systems of the world, all of which were unanimous in their insistence on the highest standards of judicial rectitude. After hours of discussion with him and drawing on his immense knowledge of the subject, especially Islamic law, I prepared an annex to the draft commentary that drew on religious and cultural traditions: the texts of ancient Egypt and Hindu law; Buddhist philosophy and the Twelve Tables of Rome (which contained the injunction that “The setting of the sun shall be the extreme limit of time within which a judge must render his decision” ); the legal systems that flourished in China and in Africa at the same time as they did in Greece and Rome; the writings of Jewish scholars; the teachings of the Old Testament; and the very specific and comprehensive provisions in Islamic Law. These judicial values were not only global; they were also eternal. They were part of the heritage of mankind.
In 2007, Judge Weeramantry, together with Chief Justice Pius Langa of South Africa, presided over the Intergovernmental Expert Group, convened in Vienna at the request of ECOSOC, to scrutinize and approve the draft Commentary. As the draft was examined in detail, paragraph by paragraph by over a hundred participants, not only by judges but by senior government officials nominated by states, it was the unique judicial experience and temperament of these two distinguished judges that made it possible to retain the text of the Bangalore Principles and of the 175-page draft Commentary with minimum amendments. In 2010, in Lusaka, Judge Weeramantry chaired the meeting of the Judicial Integrity Group at which Measures for the Effective Implementation of the Bangalore Principles was adopted. That statement of benchmarks or guidelines describes the responsibilities of the judiciary and the institutional arrangements to be established by the state to give effect to the Bangalore Principles. Earlier, at a meeting in Colombo in January 2003, the Group adopted Principles of Conduct for Judicial Personnel, that had been prepared following a consultation process with selected court registrars.
The Philippines was among the first judiciaries to adopt the Bangalore Principles and the Principles of Conduct for Judicial Personnel. From Belize in the Caribbean to the Marshall Islands in the Pacific, the Bangalore Principles have been used as the model by national judiciaries in fashioning their own codes of conduct. Judge Weeramantry kept himself informed as judiciary after judiciary modelled their own codes of conduct on the Bangalore Principles. I can imagine the sense of achievement he must have felt when, in May 2016, he was informed that the Bangalore Principles were now included in the United Nations Compendium of UN Standards and Norms.
The Judicial Integrity Group over which Judge Weeramantry presided has survived for over sixteen years as an autonomous body with a continuing commitment to developing tools to strengthen judicial integrity. Its initiatives have considerably expanded the global architecture of standards applicable to judicial systems. There were moments when other, more powerful organizations attempted to “absorb” the Group. I recall a meeting in Vienna when a senior UN official attempted to convert it into a “UN activity” with the offer of funds and other benefits and Judge Weeramantry strongly insisted that it should remain a “UN-supported activity”. On that occasion, all its members, led by Chief Justice Langa of South Africa asserted that the Group was, and would continue, as an independent and autonomous body which determines its own programme of work and its own membership.
With dignity, grace and charm, Judge Weeramantry presided over a group of powerful judicial personalities of many nationalities. His indomitable spirit led them to achieve the objectives they sought. The Bangalore Principles was the first ever instrument not drafted by representatives of governments to have been accepted and endorsed by the United Nations. In that sense, Judge Weeramantry led the process that broke the glass ceiling.