IN the light of the recent controversy that took place in our judicial system between two top judges, it is about time that the public should be made aware of the judicial machinery and the impact it can cause on this prestigious institution. Perhaps the foremost challenge for judicial administration today is to ensure the contemporary expectations of accountability and efficiency remain consistent with the imperatives of judicial independence and the maintenance of the quality of justice.

The integrity of the judicial system is central to the maintenance of a democratic society. Through the judicial system the rule of law is applied and human rights protected. In order to maintain the integrity of the judicial system, it is vital that the judiciary remains not only independent but also impartial. Judicial corruption occurs when instead of procedures being determined on the basis of evidence and the law, they are decided on the basis of improper influences, inducements, pressures, threats or interference.

The general public?s dissatisfaction with the notion of independence of the judiciary and with the inadequacy of the almost non existent disciplinary machinery is most often regarded today by the Bench and the Bar.

Conditions for judicial independence

Judges and lawyers maintain their stronghold on the legal system on the myth that they are the guardians of the constitutional rights of the people and that the lawyers champion these rights in a court of law that is right and fair. Even if there are some judges and lawyers dedicated to the proper administration of justice, unfortunately there are many who fail to put into practice the judicial independence given to them in trust and confidence of the people.

The good that proper adjudication can do for the justice and stability of a country is only attainable if judges decide by the law and are perceived by everyone around them to be deciding according to law rather than according to their own whim or in compliance with the will of powerful political actors

The judicial system in every country is unique because the history, political development, and culture of every country are unique. But there are some attributes that are essential to an independent judiciary. There are a number of preconditions to a fully independent judiciary, the most rudimentary of which are enunciated in the UN Basic Principles on the Independence of the Judiciary.

The United Nations basic principles on the role of lawyers (1990), the Guidelines on the role of Prosecutors (1990) and at the regional level, the Council of Europe standards on independence, impartiality and competence of Judges, notably recommendation No R(94) 12 on the independence, efficiency and the role of judges of the Committee of Ministers and the Beijing Statement of Principles of the Judiciary in the LAWASIA Region (1995) have been applied as minimum benchmarks to measure the state of independence of judges and lawyers among member states.

A recent example of a prescriptive model for judicial conduct is ?The Bangalore Principle of Judicial Conduct 2002? published in January of last year. The ubiquity of the issues that arise is reflected in the 32 different instruments, upon which the authors of the Principles say they drew, ranging from the Codes of Conduct of Idaho, Kenya, Pakistan and Texas to Principles of Judicial Independence of the International Bar Association, the Solomon Islands and the Beijing Statement. This document had the general support of eminent Chief Justices of some of the State of the two major legal traditions, namely the common law traditions. This document proposes to secure judicial accountability whilst strengthening judicial independence.

Political pressure

Although judicial appointment are often made by political figures, the independence of judges after appointment to the Bench, should be protected to ensure that the right of the litigants are not comprised by illegitimate or illegal considerations. Political considerations often impose limitations on the substantive decisions of the court. When political interference is left unaddressed, it is likely to impinge on the ability of the judiciary to arrive at justice under the law in a confident and convincing manner. The existence of any unchecked political pressure, casts a long shadow over the independence of the courts, causing them to be aware of political considerations extraneous to the cases at hand.

The dual goals of judicial independence to enable the judiciary to make impartial decisions and to keep the political branches in check was put to an early test in the landmark case of Marbury v Madison in 1803. In this case the Secretary of State James Madison, acting on President Jefferson?s instruction refused to award Marbury a commission he had received from outgoing President John Adams to serve as a justice of the peace in the district of Columbia. Marbury challenged Madison and Jefferson?s action in an original mandamus petition to the Supreme Court.

This was a landmark decision because it was the first case in which the judiciary?s powers to review and void the acts of another branch of the federal government was asserted. In the USA although Marbury set precedent for the proposition that the federal courts could and should serve as a check on the political branches and majoritarian, without jeopardizing their independence, such a proposition has never implied immunity from criticism.

In this context the ability of the courts to perform their task may lie initially in the extent to which the concept of judicial review is developed and accepted. In order to resolve disputes effectively it is necessary that courts establish or recognized means of reviewing decisions of political sensitivity and significance.

When judicial review is established, the same may come when the possibility of averting a government crisis will lie in the hands of the judiciary. The question would then be whether the government would follow a judicial decision that is inconsistent with its position. For this, the courts will be unable to have the political trust necessary to resolve important issues in crisis situations without first establishing a history of fairly and judiciously solving similar situations.

The basic institutional design for the protection of judicial independence has been developed in much the same way in different systems of law over many years. Security of tenure is universally regarded as an essential part of any such institutional structure.

Accountability

The Supreme Court of Canada has referred to the main or core principles of the independence of the judiciary namely, security of tenure, financial stability and institutional security. In Mauritius, extensive constitutional provisions are intended to safeguard the independence of the judiciary, including articles regarding selection, conditions of tenure and removal of judges at both Supreme Court and the High Court level.

In order to maintain the independence of the judiciary, the constitution guarantees that although the Chief Justice, Judges of the Supreme Court and Court of Appeal are appointed by the President, they can be removed from office only upon an address of Parliament supported by a majority of members on the ground of ?proved misbehaviour and incapacity?. In reality however in relation to appointments in Mauritius it has been observed that judicial appointments are subject to executive preferences.

The term ?accountability? covers a broad range of issues. It encompasses a wide range of forms of supervision, control, reporting and responsiveness, which can imagine in different ways on judicial independence. The most frequently cited of this principle is that justice must not only be done, but in open court it must manifestly be seen to be done and eventually appear to have been done.

Contempt of court

Otherwise public confidence in the judiciary is likely to be questioned. This leads to the delicate issue of how judicial conduct should be monitored and corrected. In many countries this duty falls to the Executive itself being a threat in the sense that the judicial correction process may be used by the government to silence judges whose views it disagrees. Therefore one needs to look at a model to locate the judicial correction machinery within the judicial branch itself. This process must be fair, effective and sufficiently transparent that citizens can be assured that misconduct is identified and appropriate action taken.

The issue of judicial accountability has come in for serious deliberation. There is an obvious need for a greater judicial accountability. Although judicial commissions exist for the removal and discipline of judges, in reality and practice the function of these agencies appears to be, to inform the complaining parties that the commission has no jurisdiction over the complaint.

Another area that warrants for accountability is the misuse of powers of contempt by the judiciary. The primary purpose of contempt of court is to preserve the effectiveness and sustain the powers of the judiciary.

Courts must exercise the power of contempt with restraint to ?the power to punish for contempt is awesome and carries with it the equally great responsibility to apply it judiciously and only when contempt is clearly and unequivocally shown..?? . For the sake of the independent functioning of the judiciary the right to freedom of expression is often limited by the offence of contempt of court.

In S v Van Niekerk, the South African Court of Appeal stated: ?first it is important to bear in mind that the time basis for punishment for contempt of court lies in the interest of the public, as distinct from protection of any injured Judge or Judges. Secondly, unless those last mentioned interest clearly so require, genuine criticism, even though it be somewhat emphatically or unhappily expressed, right to free speech rather than a scandalous comment falling within the ambit of the crime of contempt of court.?

In Mauritius the existing disciplines measures for all judges must be subject to improvement and that to generate trust in the judiciary, disciplinary procedure must be accountable, fair and far from interference by the Executive and the legislature.

Ahmad MACKY