The Role of an Independent Judiciary in Protecting Rule of Law

During the opening session of the Asia Pacific Justice Forum (December 8-9, 2022), Professor Margaret Sattherthwaite, UN Special Rapporteur on the independence of judges and lawyers and professor of clinical law at the New York University School of Law, outlined the importance of an independent judiciary for countering rising authoritarianism. 

Good morning, thank you. It’s a true honor to address you today as the UN Special Rapporteur on the independence of judges and lawyers at this important gathering, the Asia Pacific Justice Forum.

I want to thank the World Justice Project for the invitation to speak with you. Over the past decade, World Justice Project has become a trusted source of data and analysis concerning access to justice around the world, and I'm grateful for all that they do. It's exciting to know that representatives of government, the private sector, intergovernmental organizations, the academy, and civil society from across Asia, are gathered in Jakarta for this event. I would much rather be with you in person, not only because I would be speaking to you at 9:00 AM instead of 9:00 PM and not only because I love the city of Jakarta, but also because human connections are at the heart of justice and sitting with colleagues is crucially important to collaborative endeavors.

However, as we all learn during these COVID years, technology gives us a very decent second option. And so, my main message to you is this. Today, independent judges, lawyers, and grassroots justice advocates are on the front lines of the rule of law and human rights. Judges play the crucial role of checking executive overreach, protecting against corruption, and upholding core human rights, including freedom of speech and assembly, physical integrity and due process, and the rights of marginalized communities.

For these reasons, an independent judiciary is essential. We in the human rights field know this, and we intend to stand beside judges, civil society organizations, academics, and others who speak out in favor of a judiciary that is independent and acts with the highest integrity. As you know all too well, the recent years have been challenging.

The climate emergency, a global pandemic, rising authoritarianism, high inequality, and rapidly escalating costs of living across the world. These and other factors have contributed to significant suffering and widespread human rights abuses. Many crucial issues related to these crises have come before national courts and judges in all regions have had to grapple with unprecedented legal and factual questions, often without the resources or time they need.

In this context, independent judges have never been more important, and to the shame sometimes of the global community. The very independence, competence, and wisdom these judges bring to their work is sometimes the thing that puts them in danger.

Democratic backsliding and rising authoritarianism are compromising the integrity of legal systems and creating grave risks for judges and lawyers. Powerful actors with a strong interest in capturing and weakening systems that would otherwise provide a check on power are adopting a range of tactics.

This playbook includes overt threats and intimidation, removal from office criminalization and attempts to pay for silence. But the playbook also includes stealth attacks on judicial independence, such as the transfer of independent judges to courts far from their families, amendments to laws and regulations concerning judicial retirement, pensions, and salaries, all in efforts to quiet opposition to creeping authoritarian tendencies.

Another trend that is very concerning was recently highlighted by the UN Working Group on Business and Human Rights, which found that companies sometimes use courts, “As avenues either to silence criticism, or to influence political outcomes.” And by bringing so-called SLAPP suits—strategic lawsuits against public participation that aim to intimidate and burden critics of a company in order to silence them and others who might speak up.

The situation is very concerning. Judges are asked to spend time on abusive lawsuits when lawyers and paralegals face possible penalties for the simple act of defending the environment, indigenous communities, or human rights defenders. Stepping back for a moment, let's think about why independent judges are so important, even in settings where autocratization is not underway.

An independent judiciary is vital to the protection of all human rights. It's absolutely essential to resisting undue influence, ensuring equality, and providing remedies for justice problems. It's easy to understand why judicial independence is important.

When you think about the forces that could make a judge unfair, imagine a judge who is required to pledge loyalty to a leader to get their position. Imagine a judge who's not paid a decent salary and becomes vulnerable to bribes. Or think about judges who harbor discriminatory attitudes towards some populations or believe women are inferior.

Would you want to bring your case before this judge? No one would. And yet for some this is not unusual. Guarantees of judicial independence and integrity, structural, legal, and individual are all important for ensuring that all people, no matter their station or their situation, can get a fair hearing.

And these fair hearings are important when human rights are on the line. According to the World Justice Project, 2022 is the fifth year in a row that the rule of law has declined in most countries and respect for core human rights and freedoms are falling in two-thirds of the countries this year alone.

Regionally, WJP data demonstrates the same decline in constraints on government powers in Asia over the past several years. The latest varieties of democracy report notes that quote, the Democratic decline is especially evident in Asia Pacific, where the degree of liberal democracy enjoyed by citizens is down to levels last seen in 1986, some 35 years ago.

As the Special Rapporteur on the independence of judges and lawyers, I have a unique opportunity to cooperate with rights holders, civil society, UN member states, and other rule of law allies to ensure that our legal institutions and justice systems are really fit for purpose, that they can support the realization of human rights for all.

The mandate is also uniquely positioned to monitor and respond to some of the threats to judges that we've discussed this morning. I plan to respond as those threats occur, but also to connect disparate cases, identify systemic abuses, and name important regional and global trends. Cooperation with civil society, the academy and member states are crucial to this endeavor.

I'm eager to amplify the lessons not only that lawyers and judges have, for those of us trying to protect the rule of law, but also to amplify the lessons that grassroots justice advocates have for other justice operators, those who are excluded from the protection of legal systems. Have often overlooked insights and knowledge for those running the systems.

By listening to those bearing the brunt of injustice, we can focus on the things that need to change. In closing, I invite you to reflect on your role in upholding judicial independence. Decaying norms and the slow degradation of legal systems are sometimes hard to discern. Laws are adopted, executives reach further, judges come under pressure, and this is where you come in.

I encourage you to lift your voices in support of an independent judicial system in which judges of diverse backgrounds and life experience can serve with integrity and insecurity. Thank you very much.

Professor Satterthwaite is an international human rights scholar and practitioner with decades of experience in the field. She is a Professor of Clinical Law at New York University School of Law, where she directs the Global Justice Clinic and serves as a faculty director of the Robert and Helen Bernstein Institute for Human Rights and the Center for Human Rights and Global Justice. She was appointed as the UN Special Rapporteur on the independence of judges and lawyers in October 2022.