2. Institutionalised Arbitrariness 2.5 Compromised Independence Measured against constitutional and international human rights standards, the FTs in Assam fail categorically to meet the requirement of judicial independence. These bodies are constituted not by legislation but by executive order; their members are often drawn not from the judicial ranks; and their procedures lack the safeguards, transparency, and guarantees of independence that are 50 constitutionally required. First coming to independence. The Human Rights Committee (HRC) has repeatedly emphasised that the right to be tried by an “independent and impartial tribunal established by law” under Article 14 of the ICCPR is an absolute right115 and a “cardinal aspect of a fair trial.”116 These standards are reinforced in General Comment No. 32 and the jurisprudence of the HRC, as well as reports by the UN Special Rapporteur on the independence of judges and lawyers, which affirm that judicial independence and impartiality constitute “general principles of law recognised by civilised nations.”117 Judicial independence requires that a tribunal be free from external influence and especially from other branches of government. The separation of powers demands clear boundaries between executive and adjudicatory functions. The HRC has recommended that judicial review and appointments be conducted by independent professional bodies, based on objective criteria and judicial competence, rather than political expediency.118 The Indian Supreme Court has underscored the importance of shielding appointment and reappointment of tribunal members from executive involvement.119 The HRC has also noted that lack of security of tenure undermines judicial independence,120 and has expressly discouraged short, renewable appointments, as they create incentives for adjudicators to align with executive preferences to secure reappointment.121 Moreover, it has warned against executive control over judicial removal,122 stressing that disciplinary procedures must be governed by independent legal processes.123 Likewise, the Indian Supreme Court disapproved of short tenures coupled with the possibility of suspension, citing the risk of tribunals functioning at the whims of the executive.124 115 116 117 118 119 120 121 122 123 124 HRC ‘Gonzalez del Rio v. Peru’ (28 October 1992) UN Doc CCPR/C/46/D/263/1987, para 5.2. HRC ‘Polay Campos v. Peru’ (6 November 1997) UN Doc CCPR/C/61/d/577/1994, para 8.8. UN Commission on Human Rights ‘Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Cumaraswamy’ UN Doc E/CN.4/1998/39/Add.1, para 55. HRC ‘Concluding Observations of the Human Rights Committee: Viet Nam’ (5 August 2002) UN Doc CCPR/CO/75/VNM, para 10. Madras Bar Assn. (MBA I) (n 103) [132]. HRC ‘General Comment No. 32’ (n 47); HRC ‘Concluding Observations of the Human Rights Committee: Uzbekistan’ (26 April 2005) UN Doc CCPR/CO/83/UZB, para 16; HRC ‘Concluding Observations of the Human Rights Committee: Republic of Moldova’ (4 November 2009) UN Doc CCPR/C/MDA/CO/2, para 24. HRC ‘Concluding Observations of the Human Rights Committee: Peru’ (15 November 2000) UN Doc CCPR/CO/70/PER, para 10; UNGA ‘Report of the Human Rights Committee, Volume I’ GAOR A/51/40, paras 352, 364; HRC ‘Concluding Observations of the Human Rights Committee: The Kyrgyz Republic’ (24 July 2000) UN Doc CCPR/CO/69/KGZ, para 15; HRC ‘Concluding Observations of the Human Rights Committee: Uzbekistan’ (n 120) para 16; HRC ‘Concluding Observations of the Human Rights Committee: Republic of Moldova’ (n 120) para 24; HRC ‘Concluding Observations of the Human Rights Committee: Viet Nam’ (n 118) para 10. HRC ‘Concluding Observations of the Human Rights Committee: Democratic People’s Republic of Korea’ (27 August 2001) UN Doc CCPR/ CO/72/PRK, para 8; HRC ‘Concluding Observations of the Human Rights Committee: Sri Lanka’ (1 December 2003) UN Doc CCPR/CO/79/ LKA, para 16; HRC ‘Concluding Observations of the Human Rights Committee: Viet Nam’ (n 118) para 10; HRC ‘Concluding Observations of the Human Rights Committee: Slovakia’ (4 August 1997) UN Doc CCPR/C/79/Add.79, para 18. HRC ‘General Comment No. 32’ (n 47); HRC ‘Concluding Observations of the Human Rights Committee: Republic of Moldova’ (5 August 2002) UN Doc CCPR/CO/75/MDA, para 12. Rojer Mathew (n 111) [171].