Maravi

The autonomy of our judiciary and impartiality of justice

The autonomy of our judiciary and impartiality of justice
By The Post
Sun 09 Jan. 2011, 04:00 CAT

THERE’S no doubt that our judiciary is held captive by the executive through poor funding. And Chief Justice Ernest Sakala is very right when he says that poor funding “…is also defeating the very concept of an autonomous judiciary”. Poor funding to the judiciary seriously undermines the capacity, prestige and integrity of our judiciary.

And a judiciary that is being undermined in this way cannot be expected to maintain the ability to act and make decisions without being controlled by anyone else. Autonomy entails the ability to act and make decisions without being controlled by anyone else.

And if the poor funding “is also defeating the very concept of an autonomous judiciary”, as Chief Justice Sakala is telling us, then we should equally expect poor funding to be defeating the ability of our judges and other adjudicators to act and make decisions without being controlled by anyone else to also suffer the same fate.

In a word, what this means is that where the concept of the autonomy of the judiciary is defeated, the executive starts to have an undue influence on the decisions and actions of the judiciary.

And this may explain why there’s a growing perception in the country that our judiciary is losing or has lost its independence and it’s being controlled by politicians in government, especially those at State House.

Much of that feeling may be unjustified, but since it is what people feel or think, it must be appreciated as a deep feeling, rather than a momentary irritation with the workings of our judiciary.

And it cannot be dismissed as mere false perception. It is thought to favour the position or interests of those in government.

But the story doesn’t end here. Where the judiciary suffers from lack of autonomy from the executive, its judges and other adjudicators are also likely to suffer from lack of internal autonomy.

The same way the ability of the judiciary to act and make decisions without being controlled by anyone else is being impaired, the judges and other adjudicators’ ability to act and make decisions without being controlled by anyone else is also affecting them.

We say this because those in the judiciary who are most controlled by the executive also extend that same control to other adjudicators on behalf of their political masters.

They will start to exert undue influence on other adjudicators, especially those they administratively supervise, to act in favour and in the interest of those in power.

And because of lack of autonomy, the interaction of officers of the judiciary and members of the executive increases exponentially. The Minister of Justice becomes their supervisor.

And in our situation, this is even made worse by the fact that the Minister of Justice is also the Vice-President.

So in terms of autonomy or independence of the judiciary, this is the worst we have seen since independence.

Even our one party state judiciary was more independent from the executive than our current judiciary.

Today, it’s not surprising that the enemies, or rather political opponents, of those in power also appear to be the enemies of those running our judiciary.

How come? Is this a coincidence? Probably this is the result of their excessive interaction, of their close working relationship.

Even the language of some of our officers of the judiciary closely resembles that of our politicians in government – they speak the same language. How come?

They attack the same people. How come? They hate the same people. How come? There are serious issues and legitimate concerns about the independence of our judiciary.

We know that saying these things attracts hatred for us from those running the judiciary, who will accuse us of saying all these things because we have cases before them. So what?

Simply because we have cases before the courts then we have no right to comment, in any way we deem fit, on an important public institution like the judiciary?

There’s no section of our community that has all the virtues, neither does any have all the vices.

We are quite sure that most of our judges and other adjudicators try to do their jobs as best as they can, even if the result is not always entirely successful.

He who has never failed to reach perfection has a right to be the harshest critic.

There can be no doubt, of course, that criticism is good for the people and institutions that are part of public life.

No institution – judiciary, parliament, whatever – should expect to be free from the scrutiny of those who give it their loyalty and support, not to mention those who don’t.

We say this because this sort of questioning can also act, and it should do so, as an effective engine for change.

The autonomy of the judiciary that Chief Justice Sakala says is also being defeated by poor funding is an essential element to the impartiality of justice.

The role of the judge is essential to the proper administration of justice as a public service.

The judge is therefore not independent in regard to the manner in which he performs this service, but only when exercising his judicial power in certain cases under litigation.

From our experience now, it is increasingly becoming clear that constitutional provisions may not by themselves ensure the autonomy or independence of our judiciary.

And the role of a chief justice is to ensure the independence of our judiciary.

A chief justice should never be seen to be the one in the forefront of undermining it by selling himself out to the executive and turning himself into an agent of those occupying State House. Our judiciary suffered this fate.

Matthew Ngulube had to resign as Chief Justice when it was discovered that he had sold himself out to those occupying State House in return for a few thousands of pounds.

This was corruption at the highest level of our judiciary.

The question being asked is: was Ngulube the only judge in that position, with that behaviour or with that type of corruption?

Clearly, the role of the Chief Justice requires someone who is eminent and who can put his mark on the image of the judiciary and legal system.

But the independence of the judiciary does not mean that a judicial officer is free to act as he pleases. He must be contained by, and follow, existing laws and procedures and practice directions.

However, adjudication by judicial officers is not merely mechanical; it also involves the exercise of discretion.

And so to interfere with the judge’s decision merely because he or she has, in the exercise of his or her discretion, passed a sentence or taken a decision with which the Chief Justice, the Attorney General, public opinion or the affected party may disagree, could be a breach of judicial independence.

But what should be the limits of this discretion?

What is in issue therefore, cannot be the absolute independence of the judiciary, but its relative independence which means the protection of judges from improper or unlawful influences, direct or indirect, on the way in which the judicial officer carries out his or her judicial functions.

What is improper influences may even change with time.

It is also necessary to pay attention to the judicial privilege arising from such independence.

Persons exercising judicial functions in a court are exempt from all civil liability whatsoever for anything done or said by them in their judicial capacity, nor can any action be brought against the state in respect of acts or omissions of persons discharging responsibilities of a judicial nature or in connection with the execution of judicial process.

The object of judicial privilege is not to protect malicious or corrupt judges, but to protect the public from the danger to which the administration of justice would be exposed if the persons concerned therein were subject to enquiry as to malice, or to litigation with those whom their decisions might offend.

It is necessary that such persons be permitted to administer the law not only independently, freely and without favour, but also without fear.

There can also be no meaningful autonomy as long as our judges are appointed, paid, promoted, or removed from office by persons or institutions controlled directly or indirectly by the executive. If this is so, then our judiciary’s independence may be more theoretical than real.

We should ask ourselves: who really appoints our judges? Who pays them or determines their pay and other benefits? Who promotes them?

One does not need a microscope to see that directly and indirectly, our judges are appointed, paid and promoted by State House and members of institutions State House directly and indirectly controls or is in a very strong position to manipulate.

In short, the President appoints, pays and promotes all our judges – they all look up to him for appointments, promotions and pay increments. Some even look up to him for contracts to continue serving as judges after they have reached retirement age.

This is where the autonomy of our judiciary stands.

And the results for this state of affairs are there for all to see. They say ‘you reap where you sow’! This is why it is important to pay a lot of attention to the issue of autonomy of our judiciary that Chief Justice Sakala has raised in relation to poor funding. We say this because the autonomy of the judiciary is an essential element to the impartiality of justice.

Labels: JUDICIARY

posted by MrK @ 8:41 PM