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NZ JUDICIAL CORRUPTION AT THE HIGHEST LEVELS? What EXACTLY did Vince Siemer say about Michael Stiassny that was ‘anti-semitic’ or constituted ‘vile racist abuse’? SUPREME COURT JUDGMENT 3 June 2011 (SC 49/2011) [2011] NZSC 63

20 June 2011

NZ JUDICIAL CORRUPTION AT THE HIGHEST LEVELS?

What EXACTLY did Vince Siemer say about Michael Stiassny that was ‘anti-semitic’ or constituted ‘vile racist abuse’?

SUPREME COURT JUDGMENT 3 June 2011 (SC 49/2011) [2011] NZSC 63

On 23 December 2008, Cooper J delivered his judgment  awarding the first respondent, Michael Peter Stiassny, defamation damages against Vincent Ross Siemer,  totalling $825,000 and the second respondent, Korda Mentha, damages of $95,000 ($75,000 for defamation and $20,000 for breach of an agreement settling a dispute between the parties).

This was the highest ever defamation award in New Zealand.

(Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008. )

“An unusual feature of the case is that Mr Siemer had been debarred from defending the proceedings.”

Whatever  happened to ‘Justice 101’?

That there are always at least TWO sides to the story, and in order to get a ‘fair trial’ you are supposed to be able to defend yourself?

Vince Siemer appealed to the Court of Appeal against J Cooper’s decision, and lost.

(Siemer v Stiassny [2011] NZCA 106. )

He then sought leave to appeal to the Supreme Court, but his application was dismissed.

((SC 49/2011) [2011] NZSC 63  3 June 2011 )

The judgment of Cooper J  accused Vince Siemer of engaging in “vile racist abuse”;

Subsequently, a  comment was made by the Court of Appeal that its attention had not been drawn to a worse case of defamation in the British Commonwealth and that its own researches had not disclosed one.

(Following comments from Steven Price Media Law Journal on these matters)

http://www.medialawjournal.co.nz/?p=205

www.medialawjournal.co.nz/?p=452

That’s pretty heavy stuff!

Vince Siemer was denied his day in Court to defend himself at the defamation hearing at which he got the highest ever defamation award against him and he  has been denied leave to appeal to the Supreme Court about the accuracy of the comments upon which the defamation award was based.

So what EXACT ‘defamatory’ statements made by Vince Siemer about Michael Stiassny were relied upon by Judge Cooper from the High Court;  Judges Arnold, Glazebrook and Hammond from the Court of Appeal; and Judges Blanchard, Tipping and William Young from the Supreme Court as being:

a) ‘anti-semetic’?

b) constituting ‘vile racist abuse’?

c) constituting ‘poking racist jibes’?
I, for one, have studied the following

SUPREME COURT JUDGMENT 3 June 2011 (SC 49/2011) [2011] NZSC 63

and have found nothing that Vince Siemer has stated about Michael Stiassny , which, in my considered opinion is ‘anti-semetic’, or constitutes ‘vile racist abuse’ or  ‘poking racist jibes’.

WHAT DO YOU THINK?

YOU BE THE JUDGE!

_______________________________________________________________

www.courtsofnz.govt.nz/from/decisions/judgments

IN THE SUPREME COURT OF NEW ZEALAND SC 49/2011 [2011] NZSC 63 BETWEEN VINCENT ROSS SIEMER

Applicant

AND MICHAEL PETER STIASSNY

First Respondent

AND KORDA MENTHA FORMERLY FERRIER HODGSON

Second Respondent

Court: Blanchard, Tipping and William Young JJ

Counsel: Applicant in person

J G Miles QC and P J L Hunt for Respondents

Judgment: 3 June 2011 ________________________________________________________________       JUDGMENT OF THE COURT ________________________________________________________________

The application for leave to appeal is dismissed.

REASONS

[1]     Vincent Ross Siemer seeks leave to appeal against a judgment of the Court of Appeal of 30 March 2011 (1) dismissing his challenge to a judgment of Cooper J delivered on 23 December 2008 awarding the first respondent, Michael Peter Stiassny, defamation damages totalling $825,000 and the second respondent, Korda Mentha, damages of $95,000 ($75,000 for defamation and $20,000 for breach of an agreement settling a dispute between the parties).(2)

______________________________________________________________

(1)  Siemer v Stiassny [2011] NZCA 106.

(2) Korda Mentha v Siemer HC Auckland CIV-2005-404-1808, 23 December 2008.

_____________________________________________________________

[2] An unusual feature of the case is that Mr Siemer had been debarred from defending the proceedings.(3) For this and other reasons, his appeal gave rise to a number of procedural difficulties. These were addressed in a judgment of the Court of Appeal of 22 December 2009,(4) the effect of which was to strike out the appeal in all respects save as to the quantum of damages.(5) A subsequent application for leave to appeal against that decision was dismissed by this Court.(6)

[3] Most of the bases upon which the applicant seeks leave to appeal involve attempts by him to revisit arguments which have been conclusively rejected by earlier judgments and which we therefore need not discuss. These include complaints about Hammond J which have been earlier addressed and rejected by this Court.

This leaves in contention three possible issues which we will briefly discuss:

(a) Mr Siemer‟s complaint that the judgment of Cooper J wrongly accused him of engaging in “vile racist abuse”;

(b) a comment made by the Court of Appeal that its attention had not been drawn to a worse case of defamation in the British Commonwealth and that its own researches had not disclosed one; and

(c) complaints about the way Mr Siemer was treated in the course of a hearing before the Court of Appeal.

[4] In the part of his judgment where he was reviewing the case for Mr Stiassny, Cooper J observed:

[48] [Mr Stiassny] complained also that some of the language used by Mr Siemer had apparently been calculated to be offensive to him and caused distress. Examples that he gave included ridicule of his name. Mr Siemer had distributed stickers saying “There is an “ass‟ in our website “www.stiassny.org”. Also there had been references to his Jewish religion and to the persecution of the Jews. Thus, in his letter to the New Zealand

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(3) Ferrier Hodgson v Siemer HC Auckland CIV-2005-404-1808, 9 July 2007.   The procedural history is outlined in the judgment under appeal at [10]–[18].

(4) Siemer v Stiassny [2009] NZCA 624.

(5) See [69].

(6)  Siemer v Stiassny[2010] NZSC 57.

________________________________________________________________

Institute of Chartered Accountants of 14 February 2005

Mr Siemer had written:

News Flash! Michael Stiassny tells Professional Conduct Committee that sky is yellow … again, the sky is yellow.

[49] Further, on http://www.stiassny.org, on the “interviews page” Mr Siemer had referred to him as a man with “exceptional sway within the small Jewish community” and had commented that “when the judiciary determines that a ruthless and powerful man’s reputation is so priceless … the Gestapo cannot be far behind … people like Adolph[sic] Hitler …”.

[50] On a page headed “the Smartest Guy in the Room”, Mr Siemer had stated: Stiassny will likely have taken his family and ill-gotten gains to exile in Israel or Switzerland.

[51] On the welcome page, Mr Siemer had referred to Mr Stiassny in the phrase: … what a good Jew he is (no joke).

(Emphasis added)

Toward the end of his judgment, Cooper J, in what must have been a reference back the paragraphs just set out, said that “the defamatory comments have been accompanied in some cases by clear instances of vile racist abuse”.(7)

[5] As we understand Mr Siemer‟s position, the words referred to by Cooper J at [49] which we have italicised appeared in a different “article” (if that is the right word)(8) from the reference to Mr Stiassny‟s “exceptional sway within the small Jewish community”.

He claims that his references to Mr Stiassny being Jewish are innocuous and that there was thus no basis for the Judge to find that he had engaged in “vile racist abuse”.

[6] Mr Siemer‟s argument was dealt with by the Court of Appeal in this way:

[69] A second matter is that Mr Siemer takes strong exception to the way in which he was characterised by the Judge as having made “vile racial attacks” on Mr Siemer.

In his brief written submissions he said, “It is evidence Cooper J fabricated vile racist evidence because the anti-Semitic quote he created is a combination of words he took from different articles and juxtaposed into an unrepresentative quote”. Before us, he enlarged on

_____________________________________________________________

(7)  At [78].

(8) From the material Mr Siemer has submitted the words were contained in what purported to be an interview with Mr Siemer.

_____________________________________________________________

this:he suggested that the Judge had taken “Hitler”, “Gestapo” and “Jew” out of discrete publications and rolled them all up, out of context, into a “quote” that he attributed to the appellant. In fairness to the Judge, the “quote” had been put in that manner by the plaintiffs in their submissions.

[70] We accept that the words Cooper J set out were taken from different articles and that intervening passages were omitted. However, we understand that the articles in question ran continuously on, one from another article on the website.  It must also be said that Mr Siemer was, at the very least, sailing very close indeed to the wind. It was hardly unreasonable for the Judge to reach the view that, however expressed, Mr Siemer was poking racial gibes at Mr Stiassny. And, as the trier of fact, that inference was a matter for the Judge. Certainly it was a matter that he was entitled to take into account, although the precise weight to be given to it has to be seen – as indeed the Judge did – in the larger context. Mr Siemer‟s problem was that he had “personalised” the attacks he was making in the basest kind of way, quite deliberately, and on an ongoing basis. That was what the Judge appears to have been concerned about.

[7] It is not clear to us what Cooper J intended to convey in [49] by his references to “the Gestapo” and “people like Adolph[sic] Hitler”. In the context of the “interview” provided to us by Mr Siemer, these expressions were used by way of criticism of the courts‟ willingness to grant injunctive relief to protect the reputation of someone who was “powerful, ruthlessly aggressive and dodgy in his public dealings”, as Mr Siemer characterised Mr Stiassny. They thus do not have any apparent anti-Semitic connotation. This point was recognised by the Court of Appeal. The Court was nonetheless of the view that it was open to the Judge to conclude on the basis of the material as a whole that Mr Siemer was “poking racial gibes” at Mr Stiassny. In light of this, and in the more general context of the way the Court described Mr Siemer‟s behaviour in the last two sentences of [70], we do not see anything of substantial moment in this proposed appeal point.

[8] On the second question, it is clear that the egregiousness of Mr Siemer‟s conduct lay not so much in the detail of his allegations against Mr Stiassny which, while serious enough, must have been surpassed, in terms of sting, in other cases. Rather, it lay in the unusually broad scope and harassing nature of Mr Siemer‟s campaign against Mr Stiassny and his persistence in defiance of court orders.        We have not ourselves surveyed Commonwealth jurisprudence in search of a case which is worse in the respects just mentioned, but interestingly, if there is a worse case, it has not been identified by Mr Siemer. In light of this, we do not see this complaint as warranting leave to appeal.

[9] On the third issue, it is necessary to refer to the material which has been placed before us in a little more detail.

[10] Mr Siemer‟s factual contentions are set out in various documents, but for present purposes, it is sufficient to take them from a letter of 8 November 2010 to the Judicial Conduct Commissioner as to what happened at the hearing of his appeal:

The first concern arose when the three Justices … attempted to prevent submissions in respect to Cooper J fabricating evidence in the form of racist invective where it did not exist. This was overcome by reading to them Para. [11] of the Supreme Court decision,(9) but the Judges were not happy.

The [B]ench then unfairly attempted to devalue the egregious nature of what Cooper J had done. The official audio-record will show the three [J]udges made comments evidently designed to coerce me to unfairly confirm my submissions were that Cooper simply “went too far” or “made inferences which were a stretch”.

I was required to repeatedly correct these attempts at judicial steering, and referred Justice Hammond to the incontrovertible evidence that Cooper J took “Hitler” and “Gestapo” from an article I published which had nothing to do with Jews and combined these words with an innocuous comment about Stiassny‟s influence in the Jewish community from an unrelated article.

Cooper J labelled his contrived quote evidence of “vile, racist abuse” by me.              I asked Justice Hammond whether His Honour accepted the evidence proved – not my submissions – that Cooper J created racist invective where it did not naturally exist, and then unjustly attributed his contrived and unrepresented racist quote to me to support his finding of record damages. Justice Hammond refused to acknowledge this …

Yet when I responded [to the submissions made by the respondents‟ counsel] and attempted to put the blinkered submissions by respondents‟ counsel into proper context and refer the [B]ench to evidence which he evaded, Justices Arnold, Glazebrook and Hammond repeatedly and falsely claimed I was legally prevented from doing so. I quite appropriately stated that it was obviously an acceptable submission for the respondents to make, as the Court made [no] attempt to tell counsel such submissions were inappropriate or irrelevant.

Justices Arnold, Glazebrook and Hammond were still inappropriately vocally unreceptive and dismissive. (Emphasis in original) ________________________________________________________________

(9) This is a reference to the Supreme Court decision referred to above which specifically contemplated that the Court of Appeal would address Mr Siemer‟s complaint about the passage of the judgment of Cooper J referred to at [4] above, “to the extent that it may have influenced the level of the damages award”.

________________________________________________________________

[11] Mr Siemer complained that as well counsel for the respondents had misrepresented the position in submissions to the Court and that he had requested the Court of Appeal to refer the misrepresentation to the New Zealand Law Society of Disciplinary Conduct. This complaint in relation to the Judges is that: Justice Hammond refused to respond to this valid request.

[12] We were asked by Mr Siemer to obtain a transcript of the hearing in the Court of Appeal so that he could flesh out and particularise his complaints as to what the Judges, and particularly Hammond J, said during that hearing. A decision on this request was deferred pending receipt of the submissions on the leave application.

[13] The material which Mr Siemer has put to us (including the letter we have cited from above) is tendentious. The same is true of his arguments in the Court of Appeal. It is one thing to contend that there were errors in the analysis of Cooper J; it is another to accuse him of “fabricating evidence”. Further, as in this Court, most of the arguments Mr Siemer wished to advance were irrelevant to what was in issue. The tendentiousness and irrelevance of so much of what he had to say meant that testy exchanges between him and the Judges were practically inevitable.                 All in all, we see nothing in the material put to us by Mr Siemer to suggest anything approaching bias. For the sake of completeness we also reject Mr Siemer‟s contention that the Court of Appeal displayed bias by not referring the conduct of counsel for the respondent to the Law Society. If Mr Siemer is of the view that counsel was guilty of professional misconduct, there is no reason why he should not complain himself. And given that nothing approaching a credible suggestion of bias has been put forward, we see no reason to obtain a transcript from the Court of Appeal.

[14] For those reasons, the application for leave to appeal should be dismissed.

Solicitors: McElroys, Auckland for Respondents

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Doesn’t this help confirm why our New Zealand so desperately needs some checks and balances to help ensure an ‘open, transparent and accountable’ judiciary?

URGENT SYSTEMS CHANGES REQUIRED!

1) An enforceable ‘Code of Conduct’ for Judges.

(Preferably based upon the ‘Banagalore Principles for Judicial Conduct’

Reprinted in full at the end of this post) )

www.unodc.org/unodc/search.html?q=Bangalore+Principles+of+judicial+Conduct

2) An enforceable ‘Register of Pecuniary Interests’ for Judges.

3) ALL Court proceedings to be recorded, and records made available to parties who request them.

Please pass this on to as many people as possible!

Penny Bright

waterpressure.wordpress.com

waterpressure@gmail.com

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THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT 2002

(The Bangalore Draft Code of Judicial Conduct 2001adopted by the Judicial Group on Strengthening Judicial Integrity,as revised at the Round Table Meeting of Chief Justices
held at the Peace Palace, The Hague, November 25-26, 2002)

Preamble

WHEREAS the Universal Declaration of Human Rights recognizes as fundamental the
principle that everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of rights and obligations and of any criminal charge.

WHEREAS the International Covenant on Civil and Political Rights guarantees that all persons shall be equal before the courts, and that in the determination of any criminal charge or of rights and obligations in a suit at law, everyone shall be entitled, without undue delay, to a fair and public hearing by a competent, independent and impartial tribunal established by law.

WHEREAS the foregoing fundamental principles and rights are also recognized or reflected inregional human rights instruments, in domestic constitutional, statutory and common law, and in judicial conventions and traditions.

WHEREAS the importance of a competent, independent and impartial judiciary to the
protection of human rights is given emphasis by the fact that the implementation of all the other rights ultimately depends upon the proper administration of justice.

WHEREAS a competent, independent and impartial judiciary is likewise essential if the courts are to fulfil their role in upholding constitutionalism and the rule of law.

 

WHEREAS public confidence in the judicial system and in the moral authority and integrity of  the judiciary is of the utmost importance in a modern democratic society.

 

WHEREAS it is essential that judges, individually and collectively, respect and honour judicial office as a public trust and strive to enhance and maintain confidence in the judicial system.

 

WHEREAS the primary responsibility for the promotion and maintenance of high standards of  judicial conduct lies with the judiciary in each country.

AND WHEREAS the United Nations Basic Principles on the Independence of the Judiciary are designed to secure and promote the independence of the judiciary, and are addressed primarily to States.

THE FOLLOWING PRINCIPLES are intended to establish standards for ethical conduct of judges. They are designed to provide guidance to judges and to afford the judiciary a framework for regulating judicial conduct.

They are also intended to assist members of the executive and the legislature, and lawyers and the public in general, to better understand and support the judiciary. These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules of law and conduct which bind the judge.

Value 1:

INDEPENDENCE

 

Principle:

Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

Application:

 

1.1       A judge shall exercise the judicial function independently on the basis of the judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

1.2       A judge shall be independent in relation to society in general and in relation to the particular parties to a dispute which the judge has to adjudicate.

1.3        A judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free therefrom.

1.4       In performing judicial duties, a judge shall be independent of judicial colleagues in respect of decisions which the judge is obliged to make independently.

1.5       A judge shall encourage and uphold safeguards for the discharge of judicial duties in order to maintain and enhance the institutional and operational independence of the judiciary.

1.6       A judge shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary which is fundamental to the maintenance of judicial independence.

Value 2:

IMPARTIALITY  

Principle:

Impartiality is essential to the proper discharge of the judicial office. It applies not only to the decision itself but also to the process by which the decision is made.
Application:
2.1       A judge shall perform his or her judicial duties without favour, bias or prejudice.

2.2       A judge shall ensure that his or her conduct, both in and out of court, maintains and enhances the confidence of the public, the legal profession and litigants in the impartiality of the judge and of the judiciary.

2.3       A judge shall, so far as is reasonable, so conduct himself or herself as to minimise the occasions on which it will be necessary for the judge to be disqualified from hearing or deciding cases.

2.4       A judge shall not knowingly, while a proceeding is before, or could come before, the judge, make any comment that might reasonably be expected to affect the outcome of such proceeding or impair the manifest fairness of the process. Nor shall the judge make any comment in public or otherwise that might affect the fair trial of any person or issue.

 

2.5       A judge shall disqualify himself or herself from participating in any proceedings in which the judge is unable to decide the matter impartially or in which it may appear to a reasonable observer that the judge is unable to decide the matter impartially. Such proceedings include, but are not limited to, instances where

2.5.1    the judge has actual bias or prejudice concerning a party or
personal knowledge of disputed evidentiary facts concerning the
proceedings;

2.5.2    the judge previously served as a lawyer or was a material witness in the matter in controversy; or

2.5.3    the judge, or a member of the judge’s family, has an economic interest in the outcome of the matter in controversy:

Provided that disqualification of a judge shall not be required if no other tribunal can be constituted to deal with the case or, because of urgent circumstances, failure to act could lead to a serious miscarriage of justice.

Value 3:

INTEGRITY

Principle:

Integrity is essential to the proper discharge of the judicial office.

Application:

3.1       A judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer.

3.2       The behaviour and conduct of a judge must reaffirm the people’s faith in the integrity of  the judiciary. Justice must not merely be done but must also be seen to be done.

Value 4:

PROPRIETY

Principle:

Propriety, and the appearance of propriety, are essential to the performance of all of the activities of a judge.

Application:

4.1       A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.

 

4.2.      As a subject of constant public scrutiny, a judge must accept personal restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. In particular, a judge shall conduct himself or herself in a way that is consistent with the dignity of the judicial office.

4.3.      A judge shall, in his or her personal relations with individual members of the legal profession who practise regularly in the judge’s court, avoid situations which might reasonably give rise to the suspicion or appearance of favouritism or partiality.

4.4       A judge shall not participate in the determination of a case in which any member of the judge’s family represents a litigant or is associated in any manner with the case.

4.5       A judge shall not allow the use of the judge’s residence by a member of the legal profession to receive clients or other members of the legal profession.

4.6       A judge, like any other citizen, is entitled to freedom of expression, belief, association and assembly, but in exercising such rights, a judge shall always conduct himself or herself in such a manner as to preserve the dignity of the judicial office and the impartiality and independence of the judiciary.

4.7       A judge shall inform himself or herself about the judge’s personal and fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of the judge’s family.

4.8       A judge shall not allow the judge’s family, social or other relationships improperly to influence the judge’s judicial conduct and judgment as a judge.

4.9       A judge shall not use or lend the prestige of the judicial office to advance the private interests of the judge, a member of the judge’s family or of anyone else, nor shall a judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the judge in the performance of judicial duties.

4.10     Confidential information acquired by a judge in the judge’s judicial capacity shall not be used or disclosed by the judge for any other purpose not related to the judge’s judicial duties.

 

4.11     Subject to the proper performance of judicial duties, a judge may:

4.11.1              write, lecture, teach and participate in activities concerning the law, the legal system, the administration of justice or related matters;

4.11.2              appear at a public hearing before an official body concerned with matters relating to the law, the legal system, the administration of justice or related matters;

4.11.3              serve as a member of an official body, or other government commission, committee or advisory body, if such membership is not inconsistent with the perceived impartiality and political neutrality of a judge; or

4.11.4              engage in other activities if such activities do not detract from the dignity of the judicial office or otherwise interfere with the performance of judicial duties.

4.12     A judge shall not practise law whilst the holder of judicial office.

4.13     A judge may form or join associations of judges or participate in other organisations representing the interests of judges.

4.14     A judge and members of the judge’s family, shall neither ask for, nor accept, any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done by the judge in connection with the performance of judicial duties.

4.15     A judge shall not knowingly permit court staff or others subject to the judge’s influence, direction or authority, to ask for, or accept, any gift, bequest, loan or favour in relation to anything done or to be done or omitted to be done in connection with his or her duties or functions.

4.16     Subject to law and to any legal requirements of public disclosure, a judge may receive a token gift, award or benefit as appropriate to the occasion on which it is made provided that such gift, award or benefit might not reasonably be perceived as intended to influence the judge in the performance of judicial duties or otherwise give rise to an appearance of partiality.

Value 5:

EQUALITY

Principle:

Ensuring equality of treatment to all before the courts is essential to the due performance of the judicial office.

Application:

5.1       A judge shall be aware of, and understand, diversity in society and differences arising from various sources, including but not limited to race, colour, sex, religion, national origin, caste, disability, age, marital status, sexual orientation, social and economic status and other like causes (“irrelevant grounds”).

5.2       A judge shall not, in the performance of judicial duties, by words or conduct, manifest bias or prejudice towards any person or group on irrelevant grounds.

5.3       A judge shall carry out judicial duties with appropriate consideration for all persons, such as the parties, witnesses, lawyers, court staff and judicial colleagues, without differentiation on any irrelevant ground, immaterial to the proper performance of such duties.

5.4       A judge shall not knowingly permit court staff or others subject to the judge’s influence, direction or control to differentiate between persons concerned, in a matter before the judge, on any irrelevant ground.

5.5       A judge shall require lawyers in proceedings before the court to refrain from
manifesting, by words or conduct, bias or prejudice based on irrelevant grounds, except such as are legally relevant to an issue in proceedings and may be the subject of legitimate advocacy.

Value 6:

COMPETENCE AND DILIGENCE

Principle:

Competence and diligence are prerequisites to the due performance of judicial office.

Application:

6.1       The judicial duties of a judge take precedence over all other activities.

6.2       A judge shall devote the judge’s professional activity to judicial duties, which include not only the performance of judicial functions and responsibilities in court and the making of decisions, but also other tasks relevant to the judicial office or the court’s operations.

6.3       A judge shall take reasonable steps to maintain and enhance the judge’s knowledge, skills and personal qualities necessary for the proper performance of judicial duties, taking advantage for this purpose of the training and other facilities which should be made available, under judicial control, to judges.

6.4       A judge shall keep himself or herself informed about relevant developments of international law, including international conventions and other instruments establishing human rights norms.

6.5       A judge shall perform all judicial duties, including the delivery of reserved decisions, efficiently, fairly and with reasonable promptness.

6.6       A judge shall maintain order and decorum in all proceedings before the court and be patient, dignified and courteous in relation to litigants, jurors, witnesses, lawyers and others with whom the judge deals in an official capacity.  The judge shall require similar conduct of legal representatives, court staff and others subject to the judge’s influence, direction or control.

6.7       A judge shall not engage in conduct incompatible with the diligent discharge of judicial duties.

IMPLEMENTATION

By reason of the nature of judicial office, effective measures shall be adopted by national judiciaries to provide mechanisms to implement these principles if such mechanisms are not already in existence in their jurisdictions.

DEFINITIONS

 In this statement of principles, unless the context otherwise permits or requires, the following meanings shall be attributed to the words used:
Court staff” includes the personal staff of the judge including law clerks.
Judge” means any person exercising judicial power, however designated.
Judge’s family” includes a judge’s spouse, son, daughter, son-in-law, daughter-in-law, and any other close relative or person who is a companion or employee of the judge and who lives in the judge’s household.

 

Judge’s spouse” includes a domestic partner of the judge or any other person of either sex in a  close personal relationship with the judge

 

 

 

Explanatory Note

 

1.         At its first meeting held in Vienna in April 2000 on the invitation of the United Nations Centre for International Crime Prevention, and in conjunction with the 10th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, the Judicial Group on Strengthening Judicial Integrity (comprising Chief Justice Latifur Rahman of Bangladesh, Chief Justice Bhaskar Rao of Karnataka State in India, Justice Govind Bahadur Shrestha of Nepal, Chief Justice Uwais of Nigeria, Deputy Vice-President Langa of the Constitutional Court of South Africa, Chief Justice Nyalali of Tanzania, and Justice Odoki of Uganda, meeting under the chairmanship of Judge Christopher Weeramantry, Vice-President of the International Court of Justice, with Justice Michael Kirby of the High Court of Australia as rapporteur, and with the participation of Dato’ Param Cumaraswamy, UN Special Rapporteur on the Independence of Judges and Lawyers) recognized the need for a code against which the conduct of judicial officers may be measured. Accordingly, the Judicial Group requested that codes of judicial conduct which had been adopted in some jurisdictions be analyzed, and a report be prepared by the Co-ordinator of the Judicial Integrity Programme, Dr Nihal Jayawickrama, concerning:

(a) the core considerations which recur in such codes; and (b) the optional or additional considerations which occur in some, but not all, such codes and which may or may not be suitable for adoption in particular countries.

 

2.         In preparing a draft code of judicial conduct in accordance with the directions set out above, reference was made to several existing codes and international instruments including, in particular, the following:

 

(a)        The Code of Judicial Conduct adopted by the House of Delegates of the American Bar Association, August 1972.

(b)        Declaration of Principles of Judicial Independence issued by the Chief Justices of the Australian States and Territories, April 1997.

(c)        Code of Conduct for the Judges of the Supreme Court of Bangladesh, prescribed by the Supreme Judicial Council in the exercise of power under Article 96(4)(a) of the Constitution of the People’s Republic of Bangladesh, May 2000.

(d)       Ethical Principles for Judges, drafted with the cooperation of the Canadian Judges Conference and endorsed by the Canadian Judicial Council, 1998.

(e)        The European Charter on the Statute for Judges, Council of Europe, July 1998.

(f)        The Idaho Code of Judicial Conduct 1976.

(g)        Restatement of Values of Judicial Life adopted by the Chief Justices Conference of India, 1999.

(h)        The Iowa Code of Judicial Conduct.

(i)         Code of Conduct for Judicial Officers of Kenya, July 1999.

(j)         The Judges’ Code of Ethics of Malaysia, prescribed by the Yang di-Pertuan Agong on the recommendation of the Chief Justice, the President of the Court of Appeal and the Chief Judges of the High Courts, in the exercise of powers conferred by Article 125(3A) of the Federal Constitution of Malaysia, 1994.

(k)        The Code of Conduct for Magistrates in Namibia.

(l)         Rules Governing Judicial Conduct, New York State, USA.

(m)       Code of Conduct for Judicial Officers of the Federal Republic of Nigeria.

(n)        Code of Conduct to be observed by Judges of the Supreme Court and of the High Courts of Pakistan.

(o)        The Code of Judicial Conduct of the Philippines, September 1989

(p)        The Canons of Judicial Ethics of the Philippines, proposed by the Philippines Bar Association, approved by the Judges of First Instance of Manila, and adopted for the guidance of and observance by the judges under the administrative supervision of the Supreme Court, including municipal judges and city judges.

(q)        Yandina Statement: Principles of Independence of the Judiciary in Solomon Islands, November 2000.

(r)        Guidelines for Judges of South Africa, issued by the Chief Justice, the President of the Constitutional Court, and the Presidents of High Courts, the Labour Appeal Court, and the Land Claims Court, March 2000.

 

(s)        Code of Conduct for Judicial Officers of Tanzania, adopted by the Judges andMagistrates Conference, 1984.

(t)        The Texas Code of Judicial Conduct

(u)        Code of Conduct for Judges, Magistrates and Other Judicial Officers of Uganda, adopted by the Judges of the Supreme Court and the High Court, July 1989.

(v)        The Code of Conduct of the Judicial Conference of the United States.

(w)       The Canons of Judicial Conduct for the Commonwealth of Virginia, adopted and promulgated by the Supreme Court of Virginia, 1998.

(x)        The Code of Judicial Conduct adopted by the Supreme Court of the State ofWashington, USA, October 1995.

(y)        The Judicial (Code of Conduct) Act, enacted by the Parliament of Zambia, December 1999.

(z)        Draft Principles on the Independence of the Judiciary (“Siracusa Principles”), prepared by a committee of experts convened by the International Association of Penal Law, the International Commission of Jurists, and the Centre for the Independence of Judges and Lawyers, 1981.

(aa)      Minimum Standards of Judicial Independence adopted by the International Bar Association, 1982.

(bb)      United Nations Basic Principles on the Independence of the Judiciary, endorsed by the  UN General Assembly, 1985.

(cc)      Draft Universal Declaration on the Independence of Justice (“Singhvi Declaration”) prepared by Mr L.V. Singhvi, UN Special Rapporteur on the Study on the Independence of the Judiciary, 1989.

(dd)     The Beijing Statement of Principles of the Independence of the Judiciary in the Lawasia  Region, adopted by the 6th Conference of Chief Justices, August 1997.

(ee)      The Latimer House Guidelines for the Commonwealth on good practice governing relations between the Executive, Parliament and the Judiciary in the promotion of good governance, the rule of law and human rights to ensure the effective implementation of the Harare Principles, 1998.

(ff)       The Policy Framework for Preventing and Eliminating Corruption and Ensuring the Impartiality of the Judicial System, adopted by the expert group convened by the Centre for the Independence of Judges and Lawyers, February 2000.

At its second meeting held in Bangalore in February 2001, the Judicial Group (comprising Chief Justice Mainur Reza Chowdhury of Bangladesh, Justice Claire L’Heureux Dube of Canada, Chief Justice Reddi of Karnataka State in India, Chief Justice Upadhyay of Nepal, Chief Justice Uwais of Nigeria, Deputy Chief Justice Langa of South Africa, Chief Justice Silva of Sri Lanka, Chief Justice Samatta of Tanzania, and Chief Justice Odoki of Uganda, meeting under the chairmanship of Judge Weeramantry, with Justice Kirby as rapporteur, and with the participation of the UN Special Rapporteur and Justice Bhagwati, Chairman of the UN Human Rights Committee, representing the UN High Commissioner for Human Rights) proceeding by way of examination of the draft placed before it, identified the core values, formulated the relevant principles, and agreed on the Bangalore Draft Code of Judicial Conduct. The Judicial Group recognized, however, that since the Bangalore Draft had been developed by judges drawn principally from common law countries, it was essential that it be scrutinized by judges of other legal traditions to enable it to assume the status of a duly authenticated international code of judicial conduct.

The Bangalore Draft was widely disseminated among judges of both common law and civil law systems and discussed at several judicial conferences. In June 2002, it was reviewed by the Working Party of the Consultative Council of European Judges (CCJE-GT), comprising Vice- President Reissner of the Austrian Association of Judges, Judge Fremr of the High Court in the Czech Republic, President Lacabarats of the Cour d’Appel de Paris in France, Judge Mallmann of the Federal Administrative Court of Germany, Magistrate Sabato of Italy, Judge Virgilijus of the Lithuanian Court of Appeal, Premier Conseiller Wiwinius of the Cour d’Appel of Luxembourg, Juge Conseiller Afonso of the Court of Appeal of Portugal, Justice Ogrizek of the Supreme Court of Slovenia, President Hirschfeldt of the Svea Court of Appeal in Sweden, and Lord Justice Mance of the United Kingdom. On the initiative of the American Bar Association, the Bangalore Draft was translated into the national languages, and reviewed by judges, of the Central and Eastern European countries; in particular, of Bosnia-Herzegovina, Bulgaria, Croatia, Kosovo, Romania, Serbia and Slovakia.

The Bangalore Draft was revised in the light of the comments received from CCJE-GT and others referred to above; Opinion no.1 (2001) of CCJE on standards concerning the independence of the judiciary; the draft Opinion of CCJE on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality; and by reference to more recent codes of judicial conduct including the Guide to Judicial Conduct published by the Council of Chief Justices of Australia in June 2002, the Model Rules of Conduct for Judges of the Baltic States, the Code of Judicial Ethics for Judges of the People’s Republic of China, and the Code of Judicial Ethics of the Macedonian Judges Association.

 

 

 

The revised Bangalore Draft was placed before a Round-Table Meeting of Chief Justices (or their representatives) from the civil law system, held in the Peace Palace in The Hague, Netherlands, in November 2002, with Judge Weeramantry presiding. Those participating were Judge Vladimir de Freitas of the Federal Court of Appeal of Brazil, Chief Justice Iva Brozova of the Supreme Court of the Czech Republic, Chief Justice Mohammad Fathy Naguib of the Supreme Constitutional Court of Egypt, Conseillere Christine Chanet of the Cour de Cassation of France, President Genaro David Gongora Pimentel of the Suprema Corte de Justicia de la Nacion of Mexico, President Mario Mangaze of the Supreme Court of Mozambique, President Pim Haak of the Hoge Raad der Nederlanden, Justice Trond Dolva of the Supreme Court of Norway, and Chief Justice Hilario Davide of the Supreme Court of the Philippines. Also participating in one session were the following Judges of the International Court of Justice: Judge Ranjeva (Madagascar), Judge Herczegh (Hungary), Judge Fleischhauer (Germany), Judge Koroma (Sierra Leone), Judge Higgins (United Kingdom), Judge Rezek (Brazil), Judge Elaraby (Egypt), and Ad-Hoc Judge Frank (USA). The UN Special Rapporteur was in attendance. The “Bangalore Principles of Judicial Conduct” was the product of this meeting.

 

 

 

 

 

 

 

June 20, 2011 - Posted by | Fighting corruption in NZ, Fighting corruption internationally, Human rights, Internationally significant information

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