Our Constitution and the Judiciary
The judiciary in our country has of late come under serious criticism and, in fact, condemnation from a small but vocal section of the radio talk-show community in respect, particularly, of two matters that have come before our courts. One concerned the processing of a criminal case in the Magistrate's court and the handling of a consequent application for judicial review of the said processing in the High Court; the Defendant concerned is reportedly a legal counsel of the nation's Prime Minister. The other matter involved the handling of interim applications, the conduct of the trial and the outcome in the High Court of two Petitions challenging the constitutionality and, therefore, the legality of the election of the nation's Prime Minister and his Minister of Education at the December 2009 General Elections; the Court of Appeal recently dismissed the Petitioners' appeal and embraced the High Court decision, which had dismissed both petitions.
The condemnation of the Judiciary is fuelled by a belief that the provisions of our Constitution, supplemented by our laws, make it impossible for justice to be properly dispensed in the courts in cases and matters in which the political directorate and close associates are involved. That is so, it is argued, because the judges, magistrates and other high-ranking officers who hand down decisions in our courts are not equipped by the Constitution with the machinery to act, without fear or favour, in the execution of their duties. Instead, whatever power and authority the Judiciary enjoys by virtue of certain provisions of the Constitution, such concessions of power and authority are made subject, by other provisions and stipulations, to the influence and, thus, the political manipulation of the political leadership, centralized in the person of the Prime Minister. In effect, Officers of the Court are invested with no independence of action in questions affecting the political directorate. Hence, it is concluded, that instead of being independent and impartial, the Judiciary constitutes no more than, in popular parlance, a puppet body dancing to the tune of politicians.
In investigating that line of argument, it is necessary to make a distinction between the Judiciary as an institution, on one-hand, and, on the other, magistrates, Judges and other personnel who hold offices within the Judiciary. In the language of the law, the Judiciary is neither a single Judge nor all Judges and Magistrates severally, that is to say, one by one, nor even, all of them put together. While Judges, Masters, Registrars and Magistrates are undoubtedly the bedrock of the Judiciary, the Judiciary is more than simply a collection of these persons. It is, instead, an institution of State charged with responsibility for the dispensation of justice in relation to disputes arising between citizen and citizen as well as between individuals and the State. Simply put, it comprises the system of courts, and the judges, magistrates and other high-ranking personnel who hand down decisions in cases tried in these courts. Most importantly, it is founded on rules of court, that is to say, procedures to be followed in the courts and, in addition, guidelines as to the conduct of Officers of the Court in line of duty.
A similar separation is accepted, as a matter of course, in our country between the institution of the Presidency, on one hand, and the sitting President, on the other. Hence, the omissions of the President, whether actual or imagined, are not to be traced necessarily to any defects that may be inherent in the Presidency. They may well originate in the D.N.A. and character of the particular person holding the Presidency. That is why it has become fashionable in more recent times for aspersions to be cast at the President, but not at the Presidency.
The same is true of the Office of Prime Minister. That institution must be distinguished from the person holding the position of Prime Minister. Hence, any omissions or commissions of the Prime Minister, whether real or perceived, are not necessarily to be traced to any defects inherent in the institution of the Prime Ministership. Sins of omission or commission may well have to do with the personality, disposition and propensities of the particular person holding the position of Prime Minister. Another holder of the position may act differently. That much is the message conveyed when it is said, for example, that a sitting Prime Minister has brought his or her noble office into disrepute.
From this distinction between office and office-holder, that is to say, between an institution and its personnel, a certain conclusion may be drawn. It is this: The question whether the Judiciary is a victim of political manipulation or whether it exercises independence in its actions, cannot be properly answered by focusing on judgements involving the State and conveniently bypassing litigation between and among private parties. Nor can it be answered by simply digesting the outcomes of trials heard by one or other magistrate or judge, without at the same time coming to grips with the applicable principles of law. And the question, quite obviously, cannot be answered except by paying attention to the hierarchy, that is to say, the pyramid of authority and responsibility set up within our system of courts. This hierarchy is testimony to the fact that court decisions are made by persons who are of human kind and are, therefore, not infallible. And, as a fundamental proposition of jurisprudence puts it, "there is no one correct answer." It is because of this recognition that our hierarchical system of "inferior" and "superior" courts makes provision for aggrieved parties to appeal to a superior court in respect of judgements handed down by those inferior.
In our opinion, then, whether our Judiciary exercises independence in its actions or whether it is subject to State manipulation is a subject that can be meaningfully examined only in the context of an inquiry into the institutional arrangements provided for by our Constitution. These arrangements include the mode of appointment, especially of magistrates, Puisne judges of the High Court, the Justices of Appeal and the Chief Justice, to their various offices; the terms of their tenure; the manner of their removal; the conditions of their remuneration; and the scope of their jurisdiction.
Copyright, William Para Riviere, April 2013