In this article I explain that the code of judicial conduct carries a distinctive importance in the context of rebuilding the Syrian judicial authority after decades in which the executive authority and the security services penetrated its work, however it doesn’t represent a substitute for legislation, nor for the institutional guarantees necessary to the independence of the judiciary. The code isn’t a law that creates rights or assigns jurisdictions, nor is it a schedule of disciplinary penalties, but rather it is a professional normative framework that translates the values of independence, integrity, impartiality, and propriety into practical behavioral requirements governing the performance of the judge inside the court and outside it. And I show that the function of the code goes beyond the mere declaration of general principles, hence it provides judges with a clear reference for confronting improper communications and pressures, it contributes to unifying the professional culture across the courts, it supports training and ethical advice, and it also gives litigants and the public a declared standard for assessing judicial conduct, without legitimate criticism turning into a tool for influencing the independence of the judiciary. And in the transitional phase, the code can contribute to dismantling the patterns of loyalty to the authoritarian or the security hierarchy, and to entrenching loyalty to the law as the foundation upon which the judicial function is built. However the article stresses, in return, the necessity of delimiting the boundaries of the code with precision, so it isn’t a tool for vetting the fitness of judges, and it doesn’t take the place of the law of the judicial authority or of the individual accountability procedures prescribed by law. Moreover, the conflation of a breach of an ethical standard, of judicial error, and of a disciplinary violation threatens to turn the vagueness of behavioral standards into a basis for arbitrary sanction, and it constrains the independence of the judge in interpreting the law. Therefore the article concludes that the value of any Syrian code of judicial conduct is determined by the clarity of its legal source, its consistency with the international standards, the precision of its provisions, the existence of institutional mechanisms that safeguard the soundness of its interpretation and application, and its capacity to combine the independence of the judge coupled with responsibility, the protection of the litigant, and an accountability governed by legality and by the guarantees of fair procedure.
Fadel Abdulghany
The reshaping of the judicial apparatus in states emerging from authoritarian rule isn’t a purely legislative question, nor a purely ethical one, but rather it falls at the intersection of the two fields, and the code of judicial conduct occupies this space. Therefore any serious discussion of a code of this kind in Syria ought to begin by determining what it does not represent, since a large part of the confusion surrounding its role arises from treating it as though it were capable of performing functions that belong to other instruments.
So the code isn’t a legislation, and it doesn’t create rights or duties or jurisdictions, and it isn’t a mere declaration of values, because its purpose consists in translating those values into applicable standards. It isn’t a schedule of disciplinary penalties either, because it doesn’t create sanctions and doesn’t regulate their imposition. Hence it is a professional normative framework that converts the values of the judicial function into behavioral expectations binding upon judges in their official practice.
And building on this understanding, the code performs five interrelated functions. Thus it defines the professional model expected of the judge, through translating the values set out in the Bangalore Principles of Judicial Conduct into standards governing daily practice, and it also provides interpretive guidance in those situations which the legislation addresses only in general terms, beginning with communication with litigants and reaching all the way to dealing with the media and the exercise of extrajudicial activities.
And it protects the judge, first, from improper pressures, by furnishing him with a declared institutional standard he can rely upon in refusing improper communications, and second, from arbitrary discipline, through the distinction between misconduct and the judicial interpretation of the law. It also performs an institutional function, by way of unifying the professional culture across the courts and across their different degrees, organizing training, and making confidential mechanisms for ethical advice available.
It likewise assumes a function connected to transparency, through setting a public benchmark before litigants and observers, in a manner that allows the distinction to be drawn between criticism of professional conduct and the exercise of improper pressure upon the judicial authority.
And the transition doesn’t alter this basic nature, however it makes the sound design of the code more consequential in terms of outcomes. So the theory of transitional justice, within the framework of Ruti G. Teitel, views the law in periods of this sort as performing two tasks at one and the same time: the first is drawing out the lessons of the past and building upon them in order to move forward, and the second is reshaping the relationship between institutions and those subject to their authority.
And the judicial authority which worked for decades under the influence of the executive authority and the security services, its members varying in the degree of their responsiveness to that pressure, doesn’t rid itself of its acquired habits by the mere carrying out of a legislative reform, so the professional culture and the internalized assumptions about the nature of the function may well persist after the formal reform, and they require a sustained treatment through institutional practice, through training, and through clearly declared standards. And here the role of the code becomes manifest, so it doesn’t change the institutional culture on its own, however it moves the discussion from the implicit space to the explicit space, and it allows loyalty to the law, rather than loyalty to the hierarchy or to the security services, to be entrenched as a professional standard.
And four transitional functions follow from this position, so the code confronts specific practices going back to the previous phase, including directives issued outside the procedural frameworks, improper external interference, and conduct conflicting with legal duties, and that is through putting forward a counter-standard, while the determination of responsibility remains entrusted to procedures established in accordance with the law, and while retroactive application remains prohibited.
It also applies the general professional standards relating to recusal, to deliberation, to communication, and to extrajudicial conduct, within a polarized context that lends the ordinary rules an exceptional weight, and it contributes, cumulatively, to the restoration of public trust, without taking the place of actual institutional conduct or of independent accountability.
However the code isn’t an instrument for vetting fitness for office, because such vetting requires an independent legal basis, individual procedures, and the guarantee of the rights of the defense. Nor does it take the place of the law governing the judicial authority, which alone is competent to regulate appointment, promotion, discipline, and the structure of the judicial councils. Likewise it doesn’t remedy the absence of the institutional guarantees of independence, since no ethical text can furnish those guarantees.
And the legal nature of the code determines the limits of its effect, so the traditional distinction between hard law and soft law isn’t sufficient in this context, because a single code may contain founding principles, interpretive guidance, specific behavioral duties, and rules that elaborate obligations already prescribed in the legislation, and it is more accurate to describe the code as a normative instrument of varying effects.
And its effect depends upon four factors taken together: the body that issues it and its legislative basis, its position within the hierarchy of norms, the drafting of its provisions, and the mechanisms available for its interpretation and for oversight over it. And no one of these factors determines, on its own, the binding force of any given provision.
As for the most consequential distinction, it is the distinction between the code and the disciplinary regime, so a violation of the code doesn’t constitute, in and of itself, a disciplinary violation, and certain of its provisions don’t acquire this effect except where a clear, foreseeable, and legally authorized rule so provides, in a manner consistent with the United Nations Basic Principles on the Independence of the Judiciary.
Hence the adoption of a general rule making every violation of the code a disciplinary violation would transfer the ethical vagueness into a punitive system, and would indirectly narrow the interpretive function of the judge. Therefore the disciplinary violation, the breach of a behavioral standard, and judicial error must be kept separate one from another, so the first entails a sanction resting upon a clear legal basis, and the second calls for guidance and advice, as for the third, it is ordinarily addressed by way of appeal, unless the conduct itself constitutes a specific disciplinary violation. And independence doesn’t exempt judges from accountability, but rather it requires that this accountability be defined by law, and that it be conducted without pressure bearing upon the content of judicial decisions.
And the argument rests upon a single equation: the code of judicial conduct earns its place in the transitional phase when it supports the independence of the responsible judge, protects the litigant, and allows an accountability governed by law, without turning into a disciplinary instrument unrestrained by controls. And according to this equation, any Syrian draft ought to be assessed on the basis of its source and the process of its preparation, the extent of its consistency with the constitutional framework in force and with the international standards, the clarity and proportionality of its provisions, the practical infrastructure that supports it, and the precision with which it draws the dividing line between ethical breach and legal sanction, so the code is nothing but one element within a broader reform, and its value lies in occupying its proper position.
