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Commission on Human Rights
58th session
9 April 2002


STATEMENT OF THE
SPECIAL RAPPORTEUR ON THE INDEPENDENCE
OF JUDGES AND LAWYERS

MR. PARAM CUMARASWAMY





Mr Chairman,
Distinguished Delegates,
Ladies and Gentlemen,

My report consists of a main report and the reports of my missions to Guatemala, Mexico and Italy. I would like to thank all Governments and NGOs who maintained a dialogue with me in the last year. I would particularly like to thank the Governments of Guatemala, Mexico and Italy for facilitating my requests for a mission.

The main report details my activities for the year and contains information on issues related to the independence of the judiciary and lawyers in forty-nine countries that were noted by me last year.

I regret that the situation of the independence of the judiciary and the rule of law remains delicate throughout the world. In particular, I am concerned about repeated governmental interference into the independence of the judiciary which sometimes go to the extent of removal or dismissal of judges, such as happened during this reporting year in Zimbabwe, Eritrea, Guinea-Bissau, Haiti, Malawi and Tunisia. The security of judges, prosecutors and lawyers in some countries also remains a cause for concern.

I remain very concerned about the situation in Zimbabwe, which has deteriorated rapidly since I last reported at the 57th session. The attacks on the judiciary, particularly the Supreme Court, and the threats, harassments and intimidations against its judges particularly the then Chief Justice Anthony Gubbay, who was since forced to agree to retire early amounted to an attack on the rule of law. I regret that I have not received any reply from the Government on the four interventions I sent. I also regret that the Government appears to have reneged on its agreement for me to undertake a mission to Zimbabwe.

Mr. Chairman, it is for these reasons that I urge the Commission to consider and address its concern on developments in Zimbabwe. While I can only address issues on the independence of the judiciary and its impact on the rule of law in that country, it is well known there have been other human rights violations.

As in previous years, I have continued to monitor the situation in Northern Ireland. I was distressed to learn that William Stobie, a possible key witness in the Patrick Finucane murder, was shot dead in December 2001. I have expressed my concerns that the motive for the killing may have been to prevent Mr. Stobie from giving evidence in any inquiry into the Finucane murder. From my communications with the Government I understand that an international judge will be appointed to look into inter alia the Finucane and Rosemary Nelson murders, in order to decide inter alia whether or not there should be a public inquiry. Though this may sound a positive response after more than 13 years of the Finucane murder yet in my view, this will only result in further delays. I continue to believe that it is essential that an independent judicial commission of inquiry be established to investigate these murders, in particular whether there was State security forces collusion.

In November 2001, the Malawi parliament irregularly and apparently unlawfully initiated impeachment proceedings against three judges of the Supreme Court, because their judgements were unpalatable to the governing party. In February 2002, the Congress of Argentina decided to impeach all members of the Supreme Court for alleged politically biased judgements. It is feared that the judges may not be given the due process in the impeachment proceedings.

Tension between judicial independence and judicial accountability remains a matter of concern. Often independence is wrongly interpreted as the absence of any need for accountability. As reported previously, I continue to work on the elaboration of a universally acceptable code of judicial ethics and the establishment of judicial complaints mechanisms. In June this year I hope to discuss this issue with the Consultative Council of Judges of the Council of Europe to familiarise them with the Bangalore draft code on judicial conduct approved by some eight Chief Justices from Asia and Africa.

Mr. Chairman, before reporting to you on the missions that I have undertaken, I would like to express my growing concern about anti-terrorism measures that followed the September 11th attacks. You are all aware of the joint statement issued by me and 16 other independent experts on the occasion of world human rights day last December. Following President Bush’ decree on November 13 establishing military commissions to try (non-American) terrorist suspects, I indicated in a press statement, inter alia, that the foundation of the rule of law is threatened when the executive is given the power to dilute principles of a fair trial.

Mr. Chairman,
In May last year I conducted a follow up mission to Guatemala, to study developments since my earlier visit in 1999. Unfortunately, the lack of an integrated approach to reform, that would involve all the actors in the administration of justice, has hindered the implementation of the recommendations made after my visit in 1999. As a matter of fact, only four recommendations were fully implemented, 15 were in the process of being implemented and 10 had not been implemented at all. However, the Supreme Court has taken impressive initiatives to implement my recommendations. A delegation led by the Chief Justice has met me during this session and has briefed me.

The issue of impunity remains of major concern in Guatemala. Although the trial concerning the murder of Monsignor Gerardi was concluded at first instance just after my visit and ended in convictions, other cases are still pending, such as the case of the murder of Myrna Mack Chang in1990. I urge the Government to expedite the Myrna Mack trial and also urge all other perpetrators of human rights violations be brought to justice. It is also of the utmost importance that those who are known to have committed human rights violations during the armed conflict should be removed from public office and from the military.

Mr. Chairman,
Last year, I also visited Mexico. I would like to express my thanks to the Government for facilitating my mission. I was impressed by the very strong NGO community and my meetings with them proved very fruitful.

Mr. Chairman, the present PAN Government of Mexico has been in power for just over a year, after an uninterrupted reign by the PRI for many decades. I found the new Government willing to improve Mexico’s human rights record and to secure full independence of the judiciary and an effective administration of justice. There are, however, many problems that will require a strong commitment and political will from the Government to realise the reforms required.

The administration of justice in Mexico suffers from a total lack of confidence within the society at large. I am concerned about the disparity between the quality of justice dispensed by the federal courts on the one hand and by state courts on the other. This disparity is caused mainly by a difference in the availability of resources. I should like to stress that under international law, the Government of Mexico is answerable for its entire judicial system, be it on federal or on state level. The need to improve the quality of justice at state level is all the more pressing, when one considers that the vast majority of the population’s access to justice is at that level.

It has also been of major concern to me to notice the complete lack of professional organisation of lawyers in Mexico, the absence of uniform criteria for qualification to practice, and also the non-existence of disciplinary mechanisms. The quality of the legal profession in general affects the quality of the administration of justice. This situation must be immediately addressed.

I received many complaints about impunity for human rights violations. In this context, I welcome President’s Fox recent decision to appoint a special prosecutor to investigate the disappearances that occurred in the nineteen seventies and eighties. I also urge the Government to expedite the investigations into the murder of human rights lawyer Digna Ochoa, especially in the light of the death threats she and other human rights defenders had received over the years. It is important that such threats, whenever they occur and notified, are immediately and seriously investigated and proper security be provided to those threatened

Mr. Chairman,
In January I learned of a growing confrontation between the judiciary and the Government in Italy. Since a confrontation of this nature can easily degenerate and become a threat to the rule of law, I asked to go on mission to Italy in order to try to ascertain the causes. I thank the Government of Italy for having invited me to visit its country between March 11-14 this year.

My preliminary report has just been published. In my view, the present tension is caused by a number of factors, which will all need careful attention. It will not do, as so often has been done up till now, to blame the judiciary for the delays in the administration of justice. The cumbersome justice system and its procedures have contributed. I have recommended the setting up of a coordinating committee to address the reforms of the justice system in a holistic and comprehensive way. The present ad hoc approach taken by the Ministry of Justice is fraught with suspicions and mistrust. I am pleased to report that since my return from mission I have received information that the Government has acceded to this request. Another factor in the present tension is the delays in the disposal of high profile cases involving prominent political figures. I call upon these personalities to respect the principles of due process and not to use their positions to delay the proceedings unduly. Decisions of the courts must be respected by all. Though such decisions can be commented and even criticised yet the judges who make the decisions should not be attacked by anyone or by any institution. If decisions are perceived as incorrect then the proper appellate procedures must be invoked.

Mr. Chairman,
I am pleased to announce that this year I will be undertaking a mission to the Republic of Indonesia possibly in June and to the Kingdom of Saudi Arabia in October.

Thank you Mr. Chairman.