“Judge Kasper-Ansermet’s Twitter posts: reason for concern?”

3 mars 2012
http://laurentkasperansermet.com/category/cetc-chambres-extraordinaires-au-sein-des-tribunaux-cambodgiens/

“The Cambodian Government’s concern with Judge Kasper-Ansermet’s Twitter posts deserves attention. As mentioned before, Judge Kasper-Ansermet’s ‘tweets’ have unsettled both the government and domestic CIJ Bunleng. They not only demonstrated his awareness of the controversies surrounding the Court, but provided links to human rights reports calling for the resignation of CIJs, and importantly, stated his determination to investigate Cases 003 and 004. In one tweet, he asked readers: ‘What’s your answer about criticism (OSJI) for UN handling of a controversial case at the #KhmerRouge Tribunal? #asktheSG #Cambodia.

The UN claimed that it had ‘thoroughly reviewed’ the ‘ethical concerns’ held by the Cambodian Government in relation to these posts, and ‘determined that they were unfounded’.Yet, the nature of these posts might warrant some of the concern that they attracted. Judicial conduct of this nature is neither dealt with in the 2003 Agreement nor the ECCC Law, and is inadequately addressed by the Internal Rules of the ECCC. The ECCC Code of Judicial Ethics, however, is more helpful. Article 2.1 states that ‘judges shall be impartial and ensure the appearance of impartiality in the discharge of their functions’ and Article 7.1 reiterates that ‘[j]udges shall exercise their freedom of expression and association in a manner that is compatible with their office and that does not affect or appear to affect judicial independence or impartiality.’ Further guidance can be found at the international level. The 2002 Bangalore Principles of Judicial Conduct (BPJC) provides clear standards for the ethical conduct of judges. Value 2.2 BPJC states that:

‘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.’

The Judicial Integrity Group’s (JIG) Commentary on Value 2.2 further outlines that ‘out of court statements concerning issues of a partisan public controversy by a judge may undermine impartiality’. The Commentary goes on to say that some exceptions exist where comments are made in ‘defence of fundamental human rights and the rule of law’. It remains vital, in such cases, that a judge be ‘careful, as far as possible, to avoid entanglements in current controversies that may reasonably be seen as politically partisan’. To the extent that Judge Kasper-Ansermet’s Twitter posts were in the defence of fundamental human rights and the rule of law, they could constitute appropriate conduct. However, by posting challenges by organisations such as Human Rights Watch and the OJSI to the legitimacy of actions taken by the ECCC judges, Judge Kasper-Ansermet has done the opposite of enhancing public confidence in the impartiality of the judiciary.

Value 4.6 of the BPJC states that:

‘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.’

A judge’s freedom of expression is clearly limited by the need for the judiciary to both be and appear impartial and independent. The JIG’s Commentary states that a judge ‘should not involve himself or herself inappropriately in public controversies’, since it is ‘important that the judge should be seen by the public as exhibiting that detached, unbiased, unprejudiced, impartial, open-minded, and  evenhanded approach which is the hallmark of a judge’. By entering into a public debate on controversial subjects or by publicly criticising the government:

‘…the judge will not be seen to be acting judicially when presiding as a judge in court and deciding disputes which either touch the subjects in respect of which the judge has expressed public opinions, or perhaps more importantly, when the public figures or government departments that the judge has previously criticized publicly are parties or litigants or even witnesses in cases that he or she as a judge is adjudicating upon.

 It might be argued that Judge Kasper-Ansermet’s involvement in the ECCC legitimacy debate constitutes improper judicial involvement in a public debate and improper public criticism of public figures and the Cambodian Government. However, the Commentary goes on to provide that it is understood that there are limited circumstances in which a judge may appropriately speak out about a politically controversial matter. The Commentary says those can be:

‘… when the matter directly affects the operation of the courts, the independence of the judiciary (which may include judicial salaries and benefits), fundamental aspects of the administration of justice, or the personal integrity of the judge.’

Importantly, judges are still required to act with ‘great restraint’ in these situations. A judge must not appear to ‘lobby’ the government and must give no indication how a decision might be made should a particular matter come before them in court.

Judge Kasper-Ansermet has not overstepped that line. Involving himself publicly in a controversial debate might be considered unwise, particularly given his pending position as international CIJ. But his Twitter posts fall short of either lobbying the government or indicating his position regarding the guilt or innocence of suspects in Cases 003 and 004. Rather, he drew the public’s attention to the controversy at hand, and expressed his eagerness to investigate Cases 003 and 004. He exercised appropriate restraint and one can conclude that Judge Kasper-Ansermet’s actions should not be used as a reason to justify his rejection by the SCM.”

extract from “The ECCC – A Failure of Credibility”

February 2012

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