ONE COUNTRY
In
the past on this site I have written about the Independence of the
Judiciary as being the cornerstone of our Judiciary, and hence our
democracy. I have advocated against interference of politics in our Judiciary. Now, I feel that I need to counter-balance this with
examining the question of independence of the judiciary and personal
responsibility and liability of Judges.
Whilst the Judiciaries independence from political interference is guaranteed by the Constitution, practically it takes a lot of vigilance and care on the part of both the Judiciary and the Executive government to ensure that this Independence is maintained at all times. The manner in which the National Judicial System can be compromised or tainted or its independence unduly encumbered are far too numerous to mention in a brief article such as this. Even the making of a simple but serious allegation against the courts or individual judges, even if patently untrue, has a way of scarring the air and poisoning the minds of the public. It is therefore of utmost importance that those who occupy positions of great public importance, whether in politics or in the Judiciary, must conduct themselves with utmost restraint and deep reflection when dealing with matters that affect the integrity of government and Judges.
I have said that the independence of the Judiciary is important to foster faith and trust in the National Judicial System. It is likened unto a persons faith in a K100 bill. That it would have so much purchasing power. Should he take same to the shop of justice he believes he will get K100 worth in efficient effective and timely justice products from the shop of Justice. It is important that the citizen must not be short changed on his K100 bill. The moment he gets short changed, the National Judicial system dies. People find their own ways of exacting justice.
Equally, when the Judiciary is held over a barrel by the executive government or parliament, as we saw recently, with Policemen harassing the judiciary, and threatening the Judiciary that Police will not carry out Court Orders, the independence of the judiciary is being threatened and interfered with.
There are other ways to interfere with the independence of the judiciary by Parliament and the executive government. The appointment process of Judges can be interfered with, promoting or demoting Judges to bring about certain positive or negative dynamics and impact outcomes on pending cases. For example, the recent elevation of Deputy Chief Justice to Chief and a senior Judge to Deputy Chief Justice who are now presiding over the legitimacy issue of this government places enormous onus upon the integrity of these two Judges. No one doubts their abilities, and no one doubts that they should deserve this elevation, but under these circumstances (and for them with their personal interests of elevation by this government at stake ) to sit in Judgement on the legitimacy of their appointing authority?
Its a big call.
The manner of funding of the Judiciary can be interfered with to deny the Judiciary supply, or increase it as an incentive for certain outcomes.
The physical ability to move around can be hampered and judges simply cannot move around to do their work. This includes taking their travel allowances or official vehicles away, such that they cant travel to work. Even if they go to work they may be prevented from entering their chambers, or their court orders refused to be executed. These are some ways the Judiciary can be unduly compromised and interfered with. So, the Constitutional provisions on the independence of the Judiciary is important for them to make decisions without fear or favor.
Having then ensured the protection of the Judiciary under the Constitution with immunity from prosecution that is vital for it to operate without fear or favor, what about the judges- what responsibility do they have back to society? Who supervises them to ensure they do not wield judicial power as an instrument of oppression? How do we protect society, and maintain the balance of power between the three arms of government, if there are rogue judges or compromised judges at work?
Here I am not talking about oppression being the natural outcome of our adversarial system where there is always a winner and there is always a losing party. I am also not talking about preempted oppression or presumed bias because the judge may be related to certain persons or parties, of particular religious or political persuasion or has set a precedent in the past that he may be compelled to abide by.
No, I am talking about the type of oppression that is a product of deliberate conduct that lacks integrity, good faith,or otherwise amounting to reckless and or negligent conduct. I am talking about conduct that is dishonest or unlawful. I am talking about Judges making decisions for wrong reasons- decisions that are not supported by logic, the law or the facts.
Let me give you some hypothetical examples of the sort of conduct I am referring to:
1. A judge makes a ruling that is clearly not supported by the facts or the law, and the ruling being discretionary does not allow a party much hope for an appeal.
2. A judge who makes a decision in favor of a party that did him or her a past personal favor.
3. A judge who acts in a matter when it is clearly illegal, or he has no power or jurisdiction to do so. ( We have seen many of these in the Defence Inquiry where 2 Judges were involved in an illegal Inquiry, and in the Finance Inquiry where 4 Judges were involved in administrative Inquiry into the Judiciary and judicial acts which was patently unconstitutional).
4. A judge who has possibly told lies or conducted himself without integrity. ( In a situation where a National Judge upon being appointed suddenly claims he/she is a citizen of another country. When one of the paramount considerations of his/her appointment has been that he or she has led the appointing authority to believe that he/she is a national, does that amount to false and deceptive conduct, a form of dishonesty? What about his/her employment prior to being appointed as a Judge, did he or she have a work permit to operate a law firm or be employed in the country? Did he/she have a work visa to operate in this country?
5. A Judge who is seen in a certain restaurant with a party who is a party or related closely to a party in a case before the Judge in court?
6. The Judge who makes an order to protect another Judge who is accused of wrong doing.
7. The Judge who fails to make a ruling or give a decision in a timely manner or at all. ( Many parties have died or circumstances have overridden a case when a Judge fails to make a decision and the aggrieved party suffers).
It seems that in this country people appear to grant blanket immunity to Judges because they are perceived as the last line, the protectors of democracy and the Constitution. Now I have said those words myself in this column. However, I qualify that by strongly asserting that even in the most vibrant democracy and in a seemingly perfect world, which we are not, we need to be vigilant that we may breed rogues within, cloaked in judicial immunity.
We never said Judges are Gods. We never said Judges are infallible. Judges are only human, just like you and me, attendant with all the foibles of the human condition. But because they perform a role that we invest our trust and faith in, a system that must function within certain bounds of moral suasion and the law, we look to them for fairness and justice. Our faith and trust in them, and their response to that, are both as fragile as a raw egg teetering on a spoon.
The law recognizes that Judges are not immune from prosecution. The Constitution recognizes them as Leaders and therefore they are subject to the Leadership Code and the can be prosecuted for misconduct.
In certain matters where they have been clearly negligent or acted without good faith they can be sued personally.
For example, where a Judge knowingly is dishonest like in my hypothetical example No4 (above) that Judge can be referred to the Ombudsman for investigation and where there is a case for him/her to answer, prosecuted.
In Public Inquiries that are illegal, the public who are aggrieved may sue Judges personally, particularly where the Inquiry was so patiently flawed legally the Inquiry ought to have known. The immunities under the Commission of Inquiry Act may not apply to protect them.
However, in the majority of cases where the decision is a matter of discretion ( even if not supported by the law and the facts) , or where the Judge fails to hand down a decision at all, they seem to escape sanction from the public and aggrieved parties.
There is a growing view that for too long Judges have hidden behind the cloak of judicial immunity to make pronouncements that are clearly illogical, not supported by the law or facts, making decisions for wrong reasons, or not making decisions at all. We are at a point where many serious questions are being asked of the Judiciary. Can we continue to have faith in this judiciary, and will I be given the correct change if I go to shop for Justice in the shop of justice?
Should we hold Judges accountable in the way we hold other decision makers accountable?
Papua New Guineans will now need to reflect on these issues and consider their options on the type of democracy they want to build henceforth.
Justice must not only be done, but it must be seen to be done. That is the challenge of the Courts today. That is our challenge.
Whilst the Judiciaries independence from political interference is guaranteed by the Constitution, practically it takes a lot of vigilance and care on the part of both the Judiciary and the Executive government to ensure that this Independence is maintained at all times. The manner in which the National Judicial System can be compromised or tainted or its independence unduly encumbered are far too numerous to mention in a brief article such as this. Even the making of a simple but serious allegation against the courts or individual judges, even if patently untrue, has a way of scarring the air and poisoning the minds of the public. It is therefore of utmost importance that those who occupy positions of great public importance, whether in politics or in the Judiciary, must conduct themselves with utmost restraint and deep reflection when dealing with matters that affect the integrity of government and Judges.
I have said that the independence of the Judiciary is important to foster faith and trust in the National Judicial System. It is likened unto a persons faith in a K100 bill. That it would have so much purchasing power. Should he take same to the shop of justice he believes he will get K100 worth in efficient effective and timely justice products from the shop of Justice. It is important that the citizen must not be short changed on his K100 bill. The moment he gets short changed, the National Judicial system dies. People find their own ways of exacting justice.
Equally, when the Judiciary is held over a barrel by the executive government or parliament, as we saw recently, with Policemen harassing the judiciary, and threatening the Judiciary that Police will not carry out Court Orders, the independence of the judiciary is being threatened and interfered with.
There are other ways to interfere with the independence of the judiciary by Parliament and the executive government. The appointment process of Judges can be interfered with, promoting or demoting Judges to bring about certain positive or negative dynamics and impact outcomes on pending cases. For example, the recent elevation of Deputy Chief Justice to Chief and a senior Judge to Deputy Chief Justice who are now presiding over the legitimacy issue of this government places enormous onus upon the integrity of these two Judges. No one doubts their abilities, and no one doubts that they should deserve this elevation, but under these circumstances (and for them with their personal interests of elevation by this government at stake ) to sit in Judgement on the legitimacy of their appointing authority?
Its a big call.
The manner of funding of the Judiciary can be interfered with to deny the Judiciary supply, or increase it as an incentive for certain outcomes.
The physical ability to move around can be hampered and judges simply cannot move around to do their work. This includes taking their travel allowances or official vehicles away, such that they cant travel to work. Even if they go to work they may be prevented from entering their chambers, or their court orders refused to be executed. These are some ways the Judiciary can be unduly compromised and interfered with. So, the Constitutional provisions on the independence of the Judiciary is important for them to make decisions without fear or favor.
Having then ensured the protection of the Judiciary under the Constitution with immunity from prosecution that is vital for it to operate without fear or favor, what about the judges- what responsibility do they have back to society? Who supervises them to ensure they do not wield judicial power as an instrument of oppression? How do we protect society, and maintain the balance of power between the three arms of government, if there are rogue judges or compromised judges at work?
Here I am not talking about oppression being the natural outcome of our adversarial system where there is always a winner and there is always a losing party. I am also not talking about preempted oppression or presumed bias because the judge may be related to certain persons or parties, of particular religious or political persuasion or has set a precedent in the past that he may be compelled to abide by.
No, I am talking about the type of oppression that is a product of deliberate conduct that lacks integrity, good faith,or otherwise amounting to reckless and or negligent conduct. I am talking about conduct that is dishonest or unlawful. I am talking about Judges making decisions for wrong reasons- decisions that are not supported by logic, the law or the facts.
Let me give you some hypothetical examples of the sort of conduct I am referring to:
1. A judge makes a ruling that is clearly not supported by the facts or the law, and the ruling being discretionary does not allow a party much hope for an appeal.
2. A judge who makes a decision in favor of a party that did him or her a past personal favor.
3. A judge who acts in a matter when it is clearly illegal, or he has no power or jurisdiction to do so. ( We have seen many of these in the Defence Inquiry where 2 Judges were involved in an illegal Inquiry, and in the Finance Inquiry where 4 Judges were involved in administrative Inquiry into the Judiciary and judicial acts which was patently unconstitutional).
4. A judge who has possibly told lies or conducted himself without integrity. ( In a situation where a National Judge upon being appointed suddenly claims he/she is a citizen of another country. When one of the paramount considerations of his/her appointment has been that he or she has led the appointing authority to believe that he/she is a national, does that amount to false and deceptive conduct, a form of dishonesty? What about his/her employment prior to being appointed as a Judge, did he or she have a work permit to operate a law firm or be employed in the country? Did he/she have a work visa to operate in this country?
5. A Judge who is seen in a certain restaurant with a party who is a party or related closely to a party in a case before the Judge in court?
6. The Judge who makes an order to protect another Judge who is accused of wrong doing.
7. The Judge who fails to make a ruling or give a decision in a timely manner or at all. ( Many parties have died or circumstances have overridden a case when a Judge fails to make a decision and the aggrieved party suffers).
It seems that in this country people appear to grant blanket immunity to Judges because they are perceived as the last line, the protectors of democracy and the Constitution. Now I have said those words myself in this column. However, I qualify that by strongly asserting that even in the most vibrant democracy and in a seemingly perfect world, which we are not, we need to be vigilant that we may breed rogues within, cloaked in judicial immunity.
We never said Judges are Gods. We never said Judges are infallible. Judges are only human, just like you and me, attendant with all the foibles of the human condition. But because they perform a role that we invest our trust and faith in, a system that must function within certain bounds of moral suasion and the law, we look to them for fairness and justice. Our faith and trust in them, and their response to that, are both as fragile as a raw egg teetering on a spoon.
The law recognizes that Judges are not immune from prosecution. The Constitution recognizes them as Leaders and therefore they are subject to the Leadership Code and the can be prosecuted for misconduct.
In certain matters where they have been clearly negligent or acted without good faith they can be sued personally.
For example, where a Judge knowingly is dishonest like in my hypothetical example No4 (above) that Judge can be referred to the Ombudsman for investigation and where there is a case for him/her to answer, prosecuted.
In Public Inquiries that are illegal, the public who are aggrieved may sue Judges personally, particularly where the Inquiry was so patiently flawed legally the Inquiry ought to have known. The immunities under the Commission of Inquiry Act may not apply to protect them.
However, in the majority of cases where the decision is a matter of discretion ( even if not supported by the law and the facts) , or where the Judge fails to hand down a decision at all, they seem to escape sanction from the public and aggrieved parties.
There is a growing view that for too long Judges have hidden behind the cloak of judicial immunity to make pronouncements that are clearly illogical, not supported by the law or facts, making decisions for wrong reasons, or not making decisions at all. We are at a point where many serious questions are being asked of the Judiciary. Can we continue to have faith in this judiciary, and will I be given the correct change if I go to shop for Justice in the shop of justice?
Should we hold Judges accountable in the way we hold other decision makers accountable?
Papua New Guineans will now need to reflect on these issues and consider their options on the type of democracy they want to build henceforth.
Justice must not only be done, but it must be seen to be done. That is the challenge of the Courts today. That is our challenge.
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