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11 March, 2009

AHRC raises issue of use of mobile phones by judicial officers

The Asian Human Rights Commission, Hong Kong, says in a statement:

A core element in any judicial function is impartiality. The common saying is that judges need not only to be impartial but need to be seen to be impartial. Over the centuries codes of conduct have been developed which places limits on the judicial officers contacts so as to ensure that parties to cases before them will not approach the judges directly or indirectly when the cases are before a judge. However, with the changes in communication there are now many complaints of judges having been contacted by various means although there may not be direct physical contact between a judge and a party to a case or the agents of such a party. The widespread use of mobile telephones is being perceived often as breaking the ground rules relating to the impartiality of judges.

The following types of contact have often been complained of, more so privately than in public, because public complaints can carry sanctions on the basis of contempt of court and other kinds of punishments:
• Contacts by politicians at high government levels or local politicians regarding parties that they have an interest in, either wanting favours or punishment depending on the nature of their interest.
• Contacts of lower ranking judges by judges from above who may directly interfere or make such inquiries as to indicate their interest.
• Contacts by various other government officers, particularly police officers who may have some interest in a case either due to bribery or other reasons.
• Contacts by civilians interested in a particular party for reasons of their own.
• Sometimes even the parties to the conflict themselves through some form of direct access or through attorneys who may claim special relationships with the judges.
Under normal circumstances there used to be restrictions which are practiced almost universally by the judges themselves or anyway, imposed on judges in order to maintain their impartiality as well as ensuring respect for the judiciary. For example, if a politician were to contact any judge for whatever reason it would be done through the proper hierarchy and records of such contacts would be maintained. Proper protocol would require anything other than formal meetings, for example at public gatherings where judges are expected to attend, would exclude any form of discussion on the cases before them. The keeping of records of any other form of meeting safeguards the judges from being approached by politicians for improper reasons. Where the names of persons who request a meeting with a judges is recorded in proper registers, which are, in fact, public documents this acts as a deterrent for any unscrupulous politician from approaching judges for improper reasons. It is of course presumed that there will not be anything other than an official meeting. Judges will not hold private meetings with politicians. Even in the case of using official telephones normally, judges are expected to make a proper record of any contacts with a politician or an agent of a politician. Through such practices a record is kept of whatever transactions that might occur and this also protects the judges themselves from baseless allegations. However, with the use of personal mobile phones such public records are not maintained and therefore it is more open for unscrupulous politicians to contact judges without making a physical appearance and therefore without making some kind of physical impression of an improper contact with a judge.

The above considerations also apply to the cases of contact between any member of the higher judiciary and the lower ranking judiciary. All contacts other than those which are entirely personal would be done through proper channels with proper records at all levels. However, with easy access to communications when physical contact is no longer needed there is always the possibility of abuse. In some countries some judges of the lower courts who have resented contact by officers of the higher judiciary for improper reasons have kept notes in their diaries, even making journal entries about such contacts. This has been done in order to ensure some form of evidence in case judges are subjected to some kind of harassment if they have failed to comply with direct or indirect requests communicated to them by a member of the higher judiciary. Members of the higher judiciary often hold positions also in disciplinary bodies regarding the judges of lower courts and therefore there is always the fear of being manipulated into some kind of fabricated allegations if they do not comply with the requests of those who hold higher positions. The same difficulties exist in making records regarding calls made to private mobile telephones. On other occasions when a judge may himself be open to such improper approach, private mobile telephones provide an easy avenue for such discourse without this being noticed by others. (Of course it is possible to argue that even calls to private mobile telephones can be traced through telephone records. This can happen only if there are serious inquiries which takes place, if at all, only when an allegation is established already to a higher degree). With the earlier forms of recording of physical contacts it is possible to prove at an early stage that a contact has been made which would create the need for some form of an explanation on the part of the judicial officer as for what purpose such a contact was made.

Even more problems are created through contacts between the police and the judges, particularly in many countries where the police hold a predominant role in criminal justice administration and they are also very frequently accused of trying to subvert justice for their own purposes. Normal contacts between the police and the judges are maintained by way of official records. Criminal procedures codes and the police departmental codes often lay down the type of contacts and the type of records that need to be maintained on all such occasions. However, such record keeping applies only where physical contact is needed or where contacts are made officially. When the contact is made through mobile phones and other means such records are not maintained.

The meeting of a party to a case with a judge would be considered a scandal under normal circumstances. The judges maintain protocol in a way to avoid parties to a case contacting them. Even where a lawyer is to contact a judge relating to a case this would normally be done only in the presence of the lawyer for the other party. Besides this the exact content of what is discussed would be made in proper records, often in the case file itself. However, with the capacity to make contact without having a direct physical presence far more avenues have been opened for unscrupulous litigants, their lawyers and the judges who are open to such approach in order to exploit new avenues for personal benefit.

As a result of the perception of contacts being made by one or the other party to a judge by any of the means mentioned above or by any other means, there are often instances where there are allegations or at least suspicions of prearrangements about the outcome of cases. The fear of such prearrangements has increased widely in recent years in many countries. With that there is also the temptation not only for one party but also for the other to try to exploit the situation for their benefit or at least to get even. Thus, a psychological atmosphere of approaching courts has begun to change in many places. Lawyers from several countries cite examples of their clients wanting to find out what links the lawyers have with a particular judge hearing a case. Admonitions of lawyers to such clients and assertions of professional conduct on their part sometimes lead clients to look elsewhere.

The most important consequence of all this is the loss of belief in the trial at open court. The concept of trial before a court has been developed over centuries in order to ensure that trials are decided by evidence lead before court which is open to the public. Judges arrived at decisions only on the basis of evidence which is given openly and which is known to anyone who has attended the court during the trial. The perception of prearranged outcomes of disputes thus, fundamentally challenges the very notion of fair trial.

In many countries in the Asian region trial by jury is not a normal practice. Trials are normally heard by a single judge. Therefore there is more the possibility for a judge to be contacted improperly by parties or their agents. This has created a serious crisis in the confidence of the judicial process. Among those who complain most are also many lawyers who feel that their unwavering commitment to proper professional conduct has disadvantaged them in the present circumstances.

Therefore there is a need for public debate and discussion on bringing about codes of conduct relating to the prevention of improper contacts particularly through mobile telephones and other forms of modern communication.

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