Judicial Independence, Impartiality and Integrity

In some postconflict countries, the judiciary may have been controlled by political powers that interfered in the everyday decision making of judges; some judges may even have been implicated in human rights abuses. Judges may have actively discriminated against the citizenry and may not have demonstrated the highest level of impartiality and integrity necessary for a working in a judicial system operating under rule of law. In other cases, a judiciary with inadequate control over its budget may find it difficult to become operationally independent. A lack of independence, impartiality, and integrity can also be present in developing countries.

Judicial independence and impartiality are two of the key human rights set out in international standards dealing with the judiciary (see International Standards) and, in the postconflict context, significant emphasis is placed by the international community and domestic reform actors on bolstering judicial independence, impartiality, and integrity in postconflict and developing countries.

Judicial independence and impartiality are related rights, and in certain ways they overlap. Judicial independence has institutional and individual components. For there to be institutional independence, the judiciary must not be subject to executive or other interference (e.g., from a private or public organization, a national or international organization, or a person); it must be insulated from this external pressure. The judiciary must also be insulated from internal pressure. Judges must not be pressured by colleagues or those inside the judicial system. The judge should be guided only by the law and his or her solemn oath. Individual independence means that judges should be personally independent in carrying out their duties. Ensuring that the terms and conditions of their judicial service are secure is one step toward achieving individual independence. Another vital step is ensuring that adjudication is unbiased, in substance as well as in appearance: as the old adage says, “justice must not only be done but be seen to be done.” A third step is sustaining public confidence in the judicial system, which requires, among other things, ensuring transparency in the judiciary’s activities and ensuring that the judiciary is representative (e.g., that judges come from a variety of groups, ethnicities, and religions, and that they represent the population as a whole).

Impartiality requires that judges decide matters before them without improper influence from any source or for any reason. The judge should act without favor, bias, or prejudice, and where he or she cannot, he or she should excuse himself or herself from the case.

Judicial integrity is not defined in international human rights law, but it is a topic that is addressed in domestic legislation on the judiciary. Integrity refers to concepts of moral behavior and honesty in the judge’s personal and professional life. The Bangalore Principles on Judicial Integrity (Value 3) state that “integrity is essential in the proper discharge of the judicial office.” In outlining what that would look like in practice, the Bangalore Principles state that “a judge should ensure that his or her conduct is above reproach in the view of a reasonable observer.”

In seeking to promote judicial independence, impartiality, and integrity, various assistance measures are pursued, including: (1) strengthening legal guarantees of independence; (2) strengthening the judiciary’s institutional control over administration and budget; (3) developing codes of conduct; and (4) improving conditions of service (e.g., salaries).

Below are links to resources that elaborate on the meaning of these concepts and set out best practices and lessons learned in how to strengthen independence, impartiality, and integrity of the judiciary in postconflict and developing countries.

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