THE ROLE OF JUDGES IN PROMOTING THE IDEPENDENCE OF THE JUDICIARY

THE ROLE OF JUDGES IN PROMOTING
THE INDEPENDENCE OF THE JUDICIARY







( A paper presented at a Conference on the
independence of the judiciary in Sub-
Saharan Africa, organized by the
KONRAD ADENAUER FOUNDATION,
at Entebbe, Uganda,
on 27th June, 2008 )




By


THE HON. MR. JUSTICE (RET’D)
BARNABAS A. SAMATTA, FORMER
CHIEF JUSTICE OF TANZANIA

“An assertion of independence of the judiciary is no function to be lightly indulged in by timid souls nor is it a playground for the faint – hearted.”
- The Hon. Mr. Justice Lehohla, Chief Justice of the Kingdom of Lesotho

“Without independence the Judge would cease to be a Judge and hence Venderbilt has said that in a representative democratic Government the power of Judiciary depends largely on its reputation for independence”.
- Rarn Keshav Ranade, an eminent Indian jurist

When, in November last year, President Pervez Musharaf made an order sacking, according to the BBC, sixty judges, some sitting in the Supreme Court, and placing them under house arrests, one felt compelled to believe that the independence of the judiciary was heading for extinction in Pakistan. Fortunately, that calamity has not taken place. A new administration has decided, so to speak, to reverse the President’s decision. It has been said by an eminent jurist, correctly in my view, that “the strength and stability of a modern democratic State pivots upon the vision and wisdom of the legislature, the efficiency and incorruptibility of the executive and the integrity of the judiciary”. In this paper I propose to examine the role of judges in promoting the independence of the judiciary, of which they are guardians, the chief justice being its chief guardian.

Constitutions of many States guarantee that independence, but they do not define the term. Many jurists who have written about it have preferred to describe rather than define it. I propose to do the same. The independence of the judiciary may be said to consist of the following five elements:

(1) Independence from the legislature and executive (including institutions of local governments). This type of judicial independence is known as external independence.
(2) Independence from litigants, complainants, prosecutors, accused, witnesses and counsel.
(3) Independence from judicial colleagues and superiors. This is known as internal independence.
(4) Independence from society or groups thereof.
(5) Personal independence (security of tenure and reasonable conditions of service and remuneration).

It may be useful to say a word or two on the independence from judicial colleagues and superiors and the one from society or groups thereof as these two types of judicial independence are more technical in character than the other three.

Judicial independence will be incomplete if a judicial officer is not free from interference by his colleagues or superiors in the discharge of his judicial functions. While his superiors are, subject to the law, entitled to give him administrative directions or guidance aimed at ensuring quick disposal of business in his court, he cannot be directed as to how he should determine the matter or dispute before him or as to what sentence, if any, he should impose on an accused person he has found guilty. These are matters entirely in his hands. If he strays into an error on any of them a higher court will, on appeal or in revision, correct him. The necessity of the judicial independence from colleagues and superiors has been alluded to by a number of eminent jurists. Justice Douglas of the Supreme Court of the United States used the following celebrated words in expressing it:

“No matter how strong an individual judge’s spine, the threat of punishment - the greatest peril to judicial independence - would project as dark a shadow whether cast by political strangers or by judicial colleagues. A federal judge must be independent of every other judge …. Neither one alone nor any number banded together can act as censor and place sanctions on him. It is vital to preserve the opportunities for judicial individualism.”

The learned authors of the book, Legal and Professional Ethics (3rd ed., 2003), discuss the internal independence and conclude as follows on p. 415:

“The heart of judicial independence [ is ] judicial individualism. The judiciary is not a disembodied abstraction. It is composed of individual men and women who work primarily on their own.”

The independence from colleagues and superiors is also alluded to in the Commentary on the Bangalore Principles of Judicial Conduct. I will be permitted, I hope, to quote the relevant two passages in extenso. This is what the learned authors observe, at p. 50:

“The task of judging implies a measure of autonomy which involves the judge’s conscience alone. Therefore, judicial independence requires not only the independence of the judiciary as an institution from the other branches of government; it also requires judges being independent from each other. In other words, judicial independence depends not only on freedom from undue external influence, but also freedom from undue influence which might in some situations come from the actions or attitudes of other judges. A judge may sometimes find it helpful to ‘pick the brain’ of a colleague on a hypothetical basis. However, judicial decision-making is the responsibility of the individual judge, including each judge sitting in a collegiate appellate court.”

The learned authors conclude their comments on the topic in these words:

“In the performance of his or her functions, a judge is no - one’s employee. He or she is a servant of, and answerable only to, the law and to his conscience which the judge is obliged to constantly examine. It is axiomatic that, apart from any system of appeal, a judge deciding a case does not act on any order or instruction of a third party inside or outside the judiciary. Any hierarchical organisation of the judiciary and any difference in grade or rank shall, in no way, interfere with the right of a judge to pronounce the judgment freely, uninfluenced by extrinsic considerations or influences.”

It cannot be over-emphasized that a judge must demonstrate the same degree of boldness in defending his or her independence from his or her colleagues and superiors as he or she does in defending what I have described in this paper as external independence. Doing so should, hopefully, cause those members of the executive who harbour the belief that the independence of the judiciary is intended to glorify judicial officers or belittle the prestige of those working in the other two pillars of the State to accept the fact that the independence is assured to the judged and not for judges.

Like the other types of the independence of the judiciary, the independence from society or groups thereof is a crucial one in the administration of justice. A judge’s duty is to administer justice in accordance with the law as he or she understands it. Whether or not his or her decision will be popular is a matter which must not enter his or her mind. While courts belong to the people and while public confidence in the judiciary is essential, a judge must stand very firm against any intimidation or pressure from members of the public. A judge must defend zealously the independence from society or groups thereof. This is not, however, to say that he or she is not expected to share the hopes and fears of the ordinary citizen. Judges will do well to remember these wise words from President Jimmy Carter:

“The law is not a private property of lawyers, nor is justice the exclusive province of judges and juries. In the final analysis, true justice is not a matter of courts and law books, but of a commitment in each of us to liberty and mutual respect.”

The importance of the independence from society or groups thereof was very ably explained by Mr. Justice P. B. Mukhanji when he observed:

“The independence of the judiciary today requires to be maintained not only against abuse of powers by other branches of Government but also and no less against the pressure of the mobs. It has to rise above the clamour of the passing day. A judiciary that can only tell the Government when it is wrong and not the people when they are wrong, is not an independent but a timid judiciary. To be numerous is not necessarily to be just or even to be right. Justice does not trim its sails to flap with every passing wind. It is the one institution that has to stand solid and four square to all winds that blow and beat upon its fears.”
It may also be helpful, I think, to call attention to the following words of Professor D. V. Cowen, in his book, The Foundations of Freedom:

“The seat of power has, of course, largely changed since Bracton’s day. It is no longer so much a question of taming the arbitrary will of the kings and emperors and popes, but of restraining the people themselves and their representatives. Today it is the tyranny of a majority which constantly threatens to pervert and destroy democracy; and this is a tyranny which can be as ferocious and evil as that of any other ruler.”

It can be asserted without any fear of contradiction, I think, that justice is the foundation of progressive stability in society. But, in order for the administration of justice to command the respect of the ordinary man and woman, judges must, among other things, constantly remember that they are guardians of democratic values and the people’s rights in their societies. When called upon to interpret constitutions they must adopt the approach that those instruments are living documents, open to contemporary interpretation to address modern concerns. To borrow the language of the learned authors of the book, Legal and Professional Ethics, which I have already referred to: “Every endeavour should be made to preserve independent judiciary as a citadel of public justice and public security to fulfill the constitutional role assigned to the Judges.” As far as the discharge of the duty of constitutional interpretation is concerned, I would respectfully appeal to judges in Sub-Saharan Africa to take note of the words of Bhagwati, J., in India v Sankalchand Himatlal Sheth, AIR 1977 SC 2279 at 2362:

“… when the court interprets a constitutional provision, it breathes life into the inert words used in the founding document. The problem before the constitution court is not a mere verbal problem … The court cannot interpret a provision of the Constitution by making “a fortress out of the dictionary.” The significance of a constitutional problem is vital, not formal: it has to be gathered not simply by taking the words and a dictionary, but by considering the purpose and intendment of the framers as gathered from the context and the setting in which the words occur… [T]he process of constitutional interpretation is in the ultimate analysis one of reading values into its clauses.”

A constitution of a democratic State cannot rightly be regarded as a static document. Judges have the power to discover in it new constitutional rights and expand existing ones. In many countries in Africa party or parliamentary supremacy has given way to constitutional supremacy, but serious threats to this new constitutional system are emerging on the ground. Attempts are being made to replace the system of presidency with a monarchist presidency, and the multi-party system is given little chance to function smoothly. Judges must boldly nip these evil plans in the bud. Purposive interpretation of the constitution will enable them to achieve that noble goal and to secure the people’s support for the independence of the judiciary. If the judges’ interpretation of the supreme law does not give effect to their legitimate aspirations and hopes, the people are likely to regard the judiciary and judicial independence as being of little relevance to their struggle for democracy and rule of law.

Although in the discharge of their duties judges have no employer and, therefore, are answerable to no one except to their consciences and the law (Justice Learned Hand is on record of having told his clerk that he (Justice) was responsible to the books in his library), it is of paramount importance that their conduct in and out of court reaffirms the people’s faith in the independence and impartiality of the judiciary. It is not enough for a judge to be independent; he or she must do everything possible within his or her power to ensure that he or she is so perceived by society. Sometimes people of low moral character or who are lazy join politics. Sadly, it is equally true that sometimes people of that type succeed to join the judiciary as judges. It is the role of judges to take appropriate steps geared at enabling the relevant authorities to weed out such judicial officers from the judiciary. At their regular conferences or meetings judges should openly and loudly exchange views as to how vices within the judiciary should be eliminated and press for the elimination. Incompetence, corruption, timidity, arbitrariness and laziness are serious threats to the independence of the judiciary. Some judges take unconscionable time to prepare their reserved judgments. It is beyond rational controversy that the tyranny of reserved judgments oppress the interested parties and society at large. Those who are guilty of that tyranny should attempt to answer Hamlet’s question in William Shakespeare’s ‘Hamlet’ lll:

For who would bear the whips and
scorns of time,
The oppressor’s wrong, the proud
man’s contumely,
The pangs of despis’d love, the law’s
delay,
The insolence of office, and the
spurns
That patient merit of the unworthy
takes,
When he himself might his quietus
make
With a bare bodkin?

As was observed by Lord Mackay of Clashfern in his address to the 7th International Appellate Judges Conference and 6th Commonwealth Chief Justices Conference in Ottawa, Canada, in 1995, the principle of judicial independence, as with any other principle, should not be stretched to lengths that makes it untenable. Judicial independence does not condone incompetence or laziness.

Judges have an important role of enhancing public awareness of judicial independence. Public confidence and esteem for courts cannot be established and maintained through the people’s ignorance over how the judiciary operates. Members of the public should be given the opportunity to reasonably understand the judiciary and judicial independence. The learned authors of the Commentary on the Bangalore Principles of Judicial Conduct allude to the importance of the public awareness in a language which I cannot improve upon. This is what they state at p. 52:

“A judge should recognize that not everyone is familiar with [the concepts of institutional and operational independence of the judiciary] and their impact on judicial responsibilities. Public education with respect to the judiciary and judicial independence thus becomes an important function, both of the government and its institutions and of the judiciary itself, for misunderstanding can undermine public confidence in the judiciary. The public may not get a completely balanced view of the principle of judicial independence from the media which may portray it incorrectly as protecting judges from review of and public debate concerning their actions. A judge should, therefore, in view of the public’s own interest, take advantage of appropriate opportunities to help the public understand the fundamental importance of judicial independence.”
This public education would also enable members of the public to acquire a correct understanding of the difficult nature of judges’ functions and, therefore, be placed in a better position to render assistance in exerting pressure on relevant State authorities to take necessary measures aimed at ensuring that judges’ remuneration corresponds with the dignity of their office and scope of their duties to society. A judge, it has been said, “must be a jurist endowed with the legislator’s wisdom, historian’s search for truth, prophet’s vision, capacity to respond to the needs of the present, resilience to cope with the demands of the future and to decide objectively disengaging himself/herself from every personal influence or predilections.” For the benefit of the advisers of those wielding executive powers who may happen to read this paper, I wish to reproduce, at this juncture, the following observations on the difficult nature of a judge’s life said to have been made by Mr. Justice K. K. Barneji, retired Judge of the Patna High Court in India, in his article on “Life of a judge” (see the book on ethics, quoted from hereinbefore, at p. 402):

“A judge sleeps on no bed of roses. Sometimes it may be all roses but no bed when a Session Judge has to pass a sentence of death and when two High Court Judges have to confirm it. They may ask about your family’s welfare, discuss the prospect of the test- matches and join in the outbursts on the Chinese aggression, the Kashmir issue, but all the time whirling in their brain a ceaseless effort for a satisfactory answer to the vital question whether the accused was really guilty. There is perpetual worry while on the chair or on the floor, in the bath or in the drawing-room and even in parties where the exquisite midriff of the slender and delicate fair sex fails to bring out any relief except, probably, a subdued sigh.
This endless worry saps the life of a Judge, hour by hour, stretching out to months and no wonder that at the journey’s end, and many a time long before that, he is a physical weak, a victim to diabetes and blood-pressure hardly capable of enjoying the pension for a reasonable number of years.”

The importance of personal independence in the administration of justice cannot be over-emphasized. As an eminent Indian jurist observed, justice should be cheap, but judges should be dear.

I have clearly demonstrated, I hope, that judges have a key role to play in promoting the independence of the judiciary. Their accountability should enable them to play that role effectively. They must not fail in the discharge of that very important duty.