Ruth Green, IBA Multimedia Journalist
Wednesday 12 December 2018
2018 marks 70 years since the Universal Declaration of Human Rights was adopted in Paris in 1948.
It’s also a lesser-known, but extremely significant milestone, marking 30 years since the Bangalore Principles established a framework in which judges and judiciaries could play a key role in helping to advance international human rights.
The principles were adopted in Bangalore in February 1988 at a forum including judges and jurists from across the Commonwealth, the US and Pakistan.
'When judges and lawyers are criticised in the press for simply doing their job, as they were in the Brexit case, governments must step in to defend them and the rule of law
QC, Blackstone Chambers
Those present argued that there was a growing need to establish common standards for the ethical conduct of judges around the world. They came up with a number of core principles: independence; impartiality; integrity; propriety; equality; competence and diligence. These were endorsed at the 59th session of the United Nations Human Rights Commission in Geneva in April 2003. Today, many countries have adopted the Bangalore Principles. For some, like Kenya, they’ve even provided a blueprint for the country’s own principles of judicial conduct.
Justice Michael Kirby, Co-Chair of the IBA’s Human Rights Institute and former Justice of the High Court of Australia, was one of the judges present in Bangalore in 1988. Now, at a time when there’s a growing backlash against traditional institutions including the judiciary, he believes it’s even more important heed the Principles and raise the public’s confidence in the rule of law.
‘The atmosphere has changed from what it was in 1988, when there was a whole lot of idealism and expectations about globalism,’ he says. ‘In the current age there’s a strong feeling of nationalism and anti-globalism. You’ve got the United States walking out of the UN Human Rights Council, the UK leaving the EU and local sovereignty is being emphasised. That’s not a circumstance, if it persists, which is very favourable to the Bangalore idea.’
Although many judges today are aware of the Principles, it’s unclear how actively they’re being applied. ‘Even though by 2005, when I wrote my book, international law was often used in English courts, there was still a lack of general awareness regarding the numerous ways in which it could be used,’ says Shaheed Fatima, a QC at Blackstone Chambers in London. ‘Of course, it is always necessary to consider whether international law is an appropriate source in a given case. Judges do have to make sure that when they’re using international law there’s a proper basis and rationale for invoking or applying it.'
The advent of the internet and social media has placed the role of judiciaries in high-profile cases under increasing scrutiny. Kirby believes the Bangalore Principles serve as a reminder that domestic judges shouldn’t hold back on making tough decisions. ‘Bangalore was itself an example of judges with great self-assurance, who didn’t have self-doubts about what they were doing,’ he says. ‘Nowadays there’s much more caution'.
Bold judgments sometimes receive unwarranted attention. This was all too apparent in the UK in 2016 when the High Court ruled that the government was obliged to consult Parliament before triggering Article 50 of the EU Lisbon Treaty. Following the judgment, personal attacks were launched on the three High Court judges that presided over the case. One newspaper even labelled them ‘enemies of the people’. Supreme Court President Baroness Brenda Hale used a recent speech to criticise the then Lord Chancellor for ‘not coming to the defence of the judges as quickly or as firmly as many thought should have happened'.
Fatima says all governments have an obligation to do more to support their own judiciaries. ‘When judges and lawyers are criticised in the press for simply doing their job, as they were in the Brexit case, governments must step in to defend them and the rule of law,’ she says.
As the UK prepares to leave the EU, Rebecca Hilsenrath, CEO of Equality and Human Rights Commission, says now is a good opportunity for the UK to take stock of the country’s international human rights obligations. ‘As well as coming out of the safe protection of EU laws and the Charter of Fundamental Rights, we’re also looking at losing the safety net of the funding structure of the EU, where we’ve seen a lot of groups and social funds in the UK that were supported by the EU and that’s going to be lost,’ she says.
In this year of human rights milestones, Hilsenrath says it’s important to look outward rather than inward. ‘When you move into the world of human rights you are made aware of how low in a way the awareness of international human rights is among the public in general, and even within the legal community there’s very little awareness of the extent of human rights,’ she says. ‘People tend to think about it in connection with a specific topic, such as prisoners’ voting rights…but less in terms of the everyday piece of human rights.’
30 years after the Bangalore Principles came into being, Kirby hopes that judiciaries will continue to promote their ideas and include them in training. Lady Arden of Heswall, who was appointed to the Supreme Court of England & Wales in October 2018, agrees that training on the Principles is essential, since judges will continue to be ‘the gatekeepers’ for the rule of law in all societies. ‘It is their decisions that will enable international human rights norms to influence judicial decisions,’ she says.