Friday, October 23, 2009

Rupiah and judicial independence

Rupiah and judicial independence
By Editor
Fri 23 Oct. 2009, 04:00 CAT

It requires little intelligence – if a little is all one has – to realise that Rupiah Banda is up to no good, is out to destroy our country. We have been warning the Zambian people that if they are not careful, by the time Rupiah leaves office, there will be no credible institutions remaining in our country.

It’s clear that Rupiah wants to assume hegemony over everything that is a source of power, politically or otherwise, in this country. And this is demonstrated by his desire and attempts to enact laws that increase his control of the judiciary and its judges, the media and its journalists, civil society and its activists, including the Church and its priests, and so on and so forth.

Rupiah is trying desperately hard to come up with laws, to change laws to legalise his control of all the key institutions, state and civil, of our nation.

And Rupiah’s attempt to give himself arbitrary powers to alter the number of judges on our Supreme Court and High Court benches should be seen in this light.
Today Rupiah is not satisfied with his informal use of well-placed relatives and friends in our judicial process, he wants to extend and legitimise this through an Act of parliament that allows him to arbitrarily arrange or re-arrange the size of the bench in a way that suits him and his schemes or expediencies of the moment.

We are glad that even his friends in the Law Association of Zambia are starting to see through his dangerous schemes. This is evidenced by the Law Association of Zambia’s opposition to his attempt to give himself legal powers, through an Act of parliament, to change the size of the Supreme Court and High Court benches as and when he deems fit. This has also been opposed by the Human Rights Commission. And even the Judicial Service Commission has become uncomfortable with the extent to which he is prepared to push things in order to extend and entrench his hegemony over the judiciary.

It is clear that Rupiah has an agenda to bring the judiciary to its knees so that it serves his selfish interests as we have seen in the case involving his friend Frederick Chiluba.

Zambia needs an independent judiciary, a judiciary that is free from the influence or dictation of Rupiah. We have already touched on this subject in a number of editorial comments and there is very little left for us to say and as such we will say it at length.

What Rupiah is attempting to do is to exercise subtle and undue influence over the judiciary by bestowing upon himself discretionary power to determine the number of judges of both the Supreme Court and the High Court.

As the Human Rights Commission has correctly observed, what Rupiah is trying to do will seriously undermine the independence of our judiciary and it’s only an independent judiciary that is able to render justice impartially on the basis of law, thereby also protecting the human rights and fundamental freedoms of the individual. What Rupiah is trying to do will certainly undermine public confidence in the ability of the judiciary to carry out its functions in an independent and impartial manner. And as correctly observed by the Human Rights Commission, whenever this confidence begins to be eroded, neither the judiciary as an institution nor the individual judges will be able to fully perform this important task.

The Law Association of Zambia is equally very correct in its conclusion on this issue: “…The proposed amendment would not enhance the principles of independence of the judiciary, transparency and accountability of judicial officers.”
We must bear in mind that the idea of independence of the judiciary as it now presents itself is a modern one. If we go back in history, we shall generally find that, although the notion that justice should be fairly administered may well have been accepted, those who adjudicated it or settled cases were not expected to be in any real sense “independent”.

Thus in medieval England, from whose common law we derived our national legal system, justice was a royal prerogative, which the ruler carried out through his appointed officials or justices. As such, not only was there no separation of powers, but those who judged were agents of those who ruled. Judges had to conform to the dictates of those who ruled. This is where Rupiah wants to take us back to so that as the ruler, he can dictate his will on everything.

We all know that the rule of law is the ultimate foundation of the independence, integrity and impartiality of judicial conduct. In turn, these requirements must be the criteria for judicial appointment.

No complex society can operate without the efficient and expeditious performance of legal functions, by means of direct enforcement of rules and by the deterrent effect of threatened or possible enforcement.

The sense of personal security of citizens, indeed the existence of social order, is determined in large measure by the extent to which people can arrange their personal affairs and their relationships with associates, friends, family and neighbours on the assumption that basic standards of propriety are met and reasonable expectations are satisfied. In all spheres of conduct, it is essential that individuals know that they can pursue their lives with a reasonable degree of security, both of their person and of their property.

All forms of social interaction, including economic interaction, are impeded by the degree to which personal and property rights are subject to unpredictable and arbitrary incursion, so that people live in fear, or act on the basis of suspicion, rather than on the basis that others will act in a predictable way. A high level of predictability establishes the requisite social order and the confidence that one can act in accordance with reasonable beliefs as to one’s rights and obligations and that reasonable expectations will be met.

The legal system performs a critical role in the promotion of social order by the administration of the law in a manner which answers the fundamental requirements of justice namely, fair outcomes arrived at by fair procedures. The fairness of the procedures is as essential as the correctness of fairness of the outcomes. When people talk about having their “day in court”, this is a matter that is of significance to their sense of freedom and of personal autonomy.
Those in society who are powerful, including but not limited to the numerous manifestations of the executive branch of government, have other means of getting their way. What confines those with power is the effective operation of the rule of law.

Citizens are entitled to protection from the exercise of the power that others are able to exercise over their lives. Actual or threatened transgression of civil rights in society are in large measure deterred by the very existence of an independent legal profession with access to courts consisting of independent judges. From time to time deterrence does not work and the judicial arm of government must be invoked, sometimes against other arms of government, both executive and parliamentary.

The rule of law involves a principle of universality, that is to say, every person however powerful is governed by the ordinary law and is personally liable for anything done contrary to the law. All authority and power, including all aspects of governmental authority and power, must find an ultimate source in law. It is this principle that ensures that the rule of law differs from the arbitrary exercise of power. All authority is subject to and constrained by the law.

A second aspect of the rule of law is the concept of boundedness: that the law is not all-encompassing. There is a substantial sphere of freedom of action. Citizens can only be constrained or punished for violation of the law and in accordance with the law. Where the law ends, so the constraint ends. Judges and lawyers are boundary riders maintaining the integrity of the fences that divide legal constraint from the sphere of freedom of action.

The minimum content of the rule of law is that the rights and duties of persons in the community, and the consequences of breach of any such rights and duties, must be capable of objective determination. It is only if this is the case that persons and groups in society can interact with each other with confidence, in an environment of social order. Judicial independence ensures that any such determination is, in fact, objective.

Of course the rule of law is not simply a system that contains rules that must be obeyed. The law is a system to be used by citizens for their own protection and their own advancement in their relations with the state and with other citizens or organisations.

None of this can happen without the active participation of lawyers both by means of advising people of their rights and obligations and by ensuring that they are enforced. However, enforcement can only be reliable if there is an independent forum for the resolution of disputes about rights and obligations.
A society cannot be governed by the rule of law without an institutionalised arrangement for the independence of the judiciary. Furthermore, democracy depends on the courts enforcing what the legislature intended, not what the President wants.

The form of social order which we identify with a society operating under the rule of law can only exist if laws are administered fairly, rationally, predictably, consistently and impartially.

Fairness requires a reasonable process of consideration of the rights and duties asserted. Rationality requires a reasoned relationship between the rights and duties of the outcome. Predictability requires a process by which the outcome is related to the original rights and duties. Consistency requires similar cases to lead to similar results. Impartiality requires the decision-maker to be indifferent to the outcome.

Any form of improper influence, incompetence, inefficiency or bias is inconsistent with each of these objectives. Without institutionalised judicial independence, distortions are inevitable. Without a high level of competence, integrity and capacity for impartiality on the part of judges, distortions are inevitable.

Clearly, judicial independence is a fundamental right of citizens. Any tampering with the independence of the judiciary touches on the human rights of citizens and should therefore be treated as a very serious violation. What Rupiah and his minions are trying to do will have only one end result: erosion of the independence and integrity of the judiciary. And it is therefore a very serious violation which we should not treat lightly.

And all those involved in this conspiracy should be exposed and denounced and never be entrusted with any public responsibility in future. Judicial independence is not some kind of privilege which judges acquire as a perk of office. It is a very important aspect of the rule of law. For the reasons we have stated competence, integrity and capacity for impartiality are also a very important aspect of the rule of law. Judicial appointments, the determination of the size of the bench must be understood in this context which is, in the full sense of the term, constitutional.

The starting point for the impartial administration of justice is some form of institutional autonomy. An effective judiciary requires a distinct esprit de corps and its own legitimising traditions. This is often reflected in distinctive form of dress. The judiciary must be, and must be seen to be, institutionalised, a distinct group performing distinct functions.

Insofar as a polity wishes to be a society which the rule of law operates, it is essential that the ultimate guardians of the law must have the level of integrity and the status that enables courts to act as an effective constraint on the exercise of power and as a competent source of impartial decision-making.
The judiciary must be independent of any person who may seek to exercise influence on the outcome of legal proceedings, in any manner and for whatever reason. Unless that is so, the rule of law is inevitably compromised.

Obviously, the parties to a dispute are most likely persons who would seek to exercise such influence. However, persons who wish to manifest their power, or to pursue a political or social agenda, are all likely to seek to have their wishes or views implemented in the course of judicial decision-making. That is, of course, particularly true with respect to judgments that have broader implications, such as constitutional decisions, presidential election petitions, but it is a form of pressure that could arise in any kind of case. Unless judges are hard to get at, because of institutional autonomy and personal independence, there will be no shortage of persons who try to do so.

Judicial independence does not only involve freedom from direct interference. It also involves freedom from dependence, of a character which may lead to actual, or even perceived, influence, without the need to exert actual interference.
People who are used to getting their way do not usually take kindly to their wishes being frustrated. Throughout history, the executive branch of government has been such a centre of power.

The threat to independence from the executive branch, from the President is, of course, particularly acute because the executive, the President, is in one manner or another the ultimate source of power for the appointment of judges in this country, for the administration of mechanisms for discipline or removal of judges and the source of funding for all aspects of the administration of justice. And they still want more, they want to take away even the little powers parliament has in determining the size of the bench. Why?

The most significant single aspect of the institutional arrangements for judicial independence is the need to insulate, indeed to isolate, the exercise of judicial power from interference or pressure from the executive branch of government, from the President. To a substantial degree, this is simply a manifestation of the need to ensure impartiality. So far as we are aware, the executive branch is the single most frequent litigant in our courts of law.

Citizens confront the executive branch in all its various capacities in the course of litigation. Courts are frequently called upon to determine the validity of the executive action and the constitutional validity of legislation promoted by the executive.

Any citizen can be subject to investigation or prosecution by the various authorities that exercise the police power of the state, not only with respect to matters that involve allegations of criminal conduct, but also with respect to the full range of regulations that seek to confine or direct the personal behaviour of citizens. As taxpayers, citizens are engaged in disputes with revenue authorities. As property owners, citizens are engaged in disputes with a wide range of regulatory authorities that determine what they can do with their property.

As employees, citizens confront the largest single employer in the nation – the government. As persons entitled to legislative benefits, citizens are confronted with the full range of bureaucratic decision-making processes.

A significant proportion of injured persons seek compensation from government agencies such as hospitals, road authorities and police. Governmental organisations manifest the full range of commercial interests as suppliers or purchasers of goods and services from others, which are as much prone to disputes over property rights or contractual terms as any other commercial relationship.

Of course, there are numerous decision-making processes capable of impinging on judicial independence. Judges who are selected or promoted on the basis of how they are likely to decide, rather than on the basis of their professional expertise, may not disappoint the authorities who select and promote them.

Courts that are continually requesting additional resources from government in order to perform their functions effectively may prove more likely to be subject to subtle pressures to achieve particular outcomes in matters of significance to those who control the resources. Judges who are inadequately remunerated, are subject to temptations which may be difficult to resist.

Similarly, in the case of judges who are not accorded the status required to ensure that the administration of the law in their society is regarded as a matter of constitutional significance.

A judiciary which is accorded a low status and, accordingly, a low level of respect in its community, will be less likely to have the level of competence and impartiality required for the effective administration of justice.

Clearly, judicial virtues are required so that laws are administered fairly, rationally, predictably, consistently and impartially. These are requirements of the rule of law which are today being seriously threatened in our country by Rupiah’s designs and schemes to assume total hegemony over all institutions of the state and civil society.

This must be exposed and denounced even in the cool salons of political manipulation as in the hot day of mid October. This man and his friends are dangerous. Watch them! Stop them!

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