The judiciary is a critically important pillar of the state. It is often cited as one of the three pillars, with the others being the executive branch of government and parliament. From a broader angle, the people of the land are the key fourth pillar that should not be overlooked. While some judges are emblematic of justice personified, others are of a more questionable quality, with extreme cases embodying the toxic. What then is to be done to offer a sobering tonic?
To be fair, it is important to acknowledge that there are different components of the judiciary, indeed various judiciaries, and their performances vary. For example, in one country in the Asian region, there are the ordinary courts (three-tiered: courts of first instance, appellate courts and Supreme Court), administrative courts, military courts and Constitutional Court. There might also be specialised courts, such as labour courts or intellectual property courts. While the best do their work well, regrettably, the not-so-good-ones undermine human rights and democracy persistently and unconscionably.
In a nearby country over a decade ago, it was its Supreme Court that disbanded a key opposition party, thus resulting in a one-party state. More recently, a court fined the leader of the new opposition party over US$1 million (about 35 million baht) for saying that human rights had not improved under the country's new government. Political dissidents, human rights defenders and environmental activists are continually harassed by judicial sentences, fining them and imprisoning them for simply expressing their opinions and gathering peacefully to advocate their rights. In another country, a prominent court disenfranchised millions of the electorate by disbanding their political party under very dubious grounds. This has happened repetitively and with impunity.
Judicial lawfare is, regrettably, the name of the game. The following considerations thus tender some preferred orientations.
First, there is the need for a transparent, merit-based selection process, empathetic education and capacity building. In some countries, the judiciary is chosen from a young age through examination. This is not a guarantee of good judges. Other systems require that potential judges perform as lawyers for several years before seeking to become judges. Organically they are then to be chosen by their peers to become judges on the basis of their performance as practising lawyers.
While the aspiration is that judges should be independent and impartial, the ethics of judges cannot be taught by books and laws alone. As humans who have to deal with the fate of other humans and the environment, the empathy element comes through learning by doing, nurtured by grounded experiences. Aspiring judges should be required to prove that they have done work to help the community, such as through pro bono legal aid and assistance to help people in need. Their training and education should include human rights and democracy as key subjects, interlinking with international standards.
Second, there is the call for not only judicial independence but also judicial accountability. The mantra "independence of the judiciary" is well established, and it implies at least independence from the executive branch and parliament. Yet, it is essential not only to be independent but also to be seen as independent. Thus, judges should not be appointed by those two pillars mentioned but by their peers or a judicial commission with some representation from civil society and independent stakeholders.
Precisely because judges enjoy broad immunity from litigation and prosecution in their deliberations, there must be some monitoring of their performance. They are subject to accountability on the basis of their misconduct. While the latter usually entails misdeeds such as corruption, it may include situations which the international community regards as serious human rights violations (such as genocide, war crimes and crimes against humanity). Persistent undermining of human rights and democracy may also give rise to responsibility, such as in South America, where some judges linked with coups d'etat have been made accountable for wrongdoings.
Third, precautions against judicial distortions are required. The judiciary likes to invoke the concept of the rule of law. In less than democratic states, the concept is interpreted to mean that "everything is done in accordance with the national law". It is based on a subjective approach, which is misleading. Rather, that concept must be based on international law, such as human rights standards, and there is the need for objectivisation of what is permissible and what is not permissible.
For example, on the issue of freedom of expression, the subjective approach to the rule of law claims that criminal law provisions on sedition, defamation and lese majeste are legal, necessary and proportionate to the circumstances.
By contrast, international treaties and mechanisms under the United Nations have repeated many times that those laws and the way that they are exercised are not consistent with international standards.
The measurement of what is legal, necessary and proportionate cannot be left to the arbitrary construction at the national setting, especially when millions of people are being deprived of their basic rights and freedoms. Precisely because the national setting fails to protect that spectrum, the protection offered by international standards and related mechanisms is critically important as a check and balance against abuse of power.
On a related front, under the pretext of "contempt of court", the prohibitive provisions that allow courts to punish those who comment on judicial judgements by means of criminal sanctions should be reformed and fair comment should be respected.
As for the dilemma facing judges when confronted with hard cases with potential negative impacts on democracy and human rights, exemplary judges know that they can avoid cooptation by and/or subservience to the powers that be.
Judges personifying justice know when they should decline to be involved in a case, ask for a transfer to another entity (if necessary), abstain from rendering judgment, dissent and/or issue a separate opinion that diverges from the distortions inherent in those other judgments. Perhaps even to resign.
To be judicious among the judiciary is thus anchored on the ethical test of "know-why, know-how, know-what, know-who, know-when and know-where" to survive astutely while not forsaking one's principles, namely the proven commitment to democracy and human rights.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He has helped the United Nations as a UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on Human Rights.