credit: United Nations
Recent developments in Honduras and Sri Lanka have caused concern among civil society and human rights monitoring bodies for the judiciary’s independence in those countries. In Honduras, the National Congress removed four of the five justices who sit on the Constitutional Chamber of the nation’s Supreme Court. According to the Inter-American Commission on Human Rights (IACHR), the Honduran Congress ousted the justices due to their votes on a decisions holding unconstitutional a law to fight corruption among police forces. [IACHR] Also worrying are the allegations that police and military forces surrounded the Congress as the vote took place very early on December 12, 2012. Thousands of protesters in Honduras are calling for the removal of all the Supreme Court justices, and they have prevented the justices from entering the Court. [Washington Post] The four justices have appealed the removal decision.
In Sri Lanka, the Executive and Legislative branches brought impeachment proceedings against the Chief Justice of the Supreme Court, Shirani Bandaranayake, on December 8, 2012. [OHCHR] The impeachment comes after months of lawyers and judges facing harassment for promoting an independent judiciary in Sri Lanka. [OHCHR] On January 8, 2013, the Sri Lankan Court of Appeal ordered the parliament to drop the impeachment proceedings, and lawyers boycotted the courts the next day. [The Australian; Reuters] Thousands of lawyers and opposition leaders also marched on the Supreme Court in the midst of attacks from government supporters. [BBC] The government will hold a vote on Friday to determine whether to move forward with the impeachment. [BBC]
Both events have spurred responses from international human rights bodies. In reaction to the Honduran justices’ removal, the IACHR reiterated that judicial independence requires that judges be free from interference in making decisions and emphasized that judges must not face disciplinary actions based on their legal opinions. With regard to Sri Lanka, Gabriela Knaul, United Nations Special Rapporteur on the Independence of Judges and Lawyers, noted that the impeachment process has been characterized by extreme politicization and a lack of transparency. Ms. Knaul also stressed the importance of independent commissions and due process when disciplining the judiciary in Sri Lanka, in part to maintain separation of powers.
An independent judiciary stems from the concept of separation of powers. See, e.g., OHCHR, Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers, Chapter 4 Independence and Impartiality of Judges, Prosecutors and Lawyers (2011). That is, the executive, legislative, and judicial branches of government function independently of one another in a system of checks and balances designed to prevent abuses of power by any one branch. This system helps guarantee that the judiciary is able to make decisions free of influence from any other source. Other factors affecting judicial independence include the manner in which judges are appointed, the stability of their positions, whether they are allowed to form professional organizations, and whether they face threats, attacks, detentions, or other forms of persecution. See id; Basic Principles on the Independence of the Judiciary, U.N. Doc. A/CONF.121/22/Rev.1 at 59 (1985); Bangalore Principles of Judicial Conduct (2002). See also, INTERIGHTS, Expert Opinion on International Legal Standards Regarding Judicial Independence, Baltasar Garzón v. Spain. Where judges are unable to act free of interference, potential negative consequences include a culture of impunity, lack of judicial protection, inadequate due process protections, and the possibility that the general public will take the law into their own hands.
International human rights norms that provide for the right to a fair trial before an impartial and independent tribunal include Article 10 of the Universal Declaration of Human Rights (UDHR), Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR), and Article 8(1) of the American Convention on Human Rights. Sri Lanka and Honduras’ implementation of the ICCPR is overseen by the UN Human Rights Committee and via the Universal Periodic Review process, while the Inter-American Commission on Human Rights monitors compliance with the American Convention. Additionally, the UN Special Rapporteur on the Independence of Judges and Lawyers is charged with investigating claims of interference with judicial independence, reporting on both problems and successes with judicial independence, and making recommendations to improve judicial independence in all UN Member States.