16 December 2009

A UQ Pacific law expert is investigating the competing considerations involved for potential candidates in deciding whether to accept judicial appointment in an illegal regime.

TC Beirne School of Law Associate Professor Jennifer Corrin is researching the possible repercussions of accepting judicial office in countries such as Zimbabwe, Swaziland, Uganda and Fiji which have unconstitutional or illegal regimes.

Dr Corrin said judicial independence was generally accepted as a key component of the rule of law.

“Judges have to be empowered to make fair, unbiased and just decisions without concern for political repercussions.

“But in countries governed by an unconstitutional, unlawful or corrupt regime, that independence, and in turn the rule of law, is threatened.“

Dr Corrin said recent events in Fiji had highlighted two competing arguments.

“On the one hand, acceptance of judicial office in an illegal regime can be regarded as making an implicit bargain with the government to recognise its validity," she said.

“This position, however, is challenged by the contention that acceptance of judicial office, rather than acquiescing to the unlawful government, promotes the rule of law in difficult circumstances by providing access to justice systems to citizens.”

Dr Corrin said candidates should also be aware of the possible consequences of accepting a judicial appointment in a country without a democratically elected government.

“In the context of Fiji, where lawyers and judicial officers have recently been forced to decide whether or not to accept appointment, a major factor is whether this could be considered as professional misconduct," she said.

“There appears to be a gap in the Australian legal regulatory framework about this issue as there is very little guidance in the rules of professional conduct prevailing in Australia.

“Express guidance is required to dispel the uncertainty as to whether appointment to judicial office in an illegal regime amounts to professional misconduct, and if it does, to make the consequences clear.”

Associate Professor Jennifer Corrin (07 3365 2295 or j.corrin@law.uq.edu.au)
Lynda Flower, School of Law Marketing (07 3365 2523 or l.flower@law.uq.edu.au)