Dingake discusses judicial accountability
Key Dingake | Friday September 27, 2019 11:45
I am very pleased and honoured to stand before you to share my thoughts on the topic of judicial accountability. I express my sincere gratitude to the Secretariat of the Commonwealth Magistrates and Judges' Association for their kind invitation.
Before, I delve into the topic of today, I beg your indulgence to digress for a minute or so. In January, 2018, I set out to travel to Papua New Guinea to take up an appointment as a judge of the Supreme and National Courts of Papua New Guinea (PNG) . It was in many ways a leap of faith. I had just known, a few months before my departure, that there is a country called PNG. That illustrates how bad my geography was! Some of my colleagues and friends thought that I was out of my mind. They could only say to me “make sure you come back alive”. Another friend actually suggested I should not end up in the pot. My kids, ever forward looking, would say in a chorus: “Go dad, go”!
Nothing I read online prepared me for the outpouring of love and affection I received from my colleagues on the bench and the ordinary people in the street. In the public spaces I visited, I was welcomed like a long lost kin. I was called wantok. (A person with whom one has a strong social bond). Every time I travelled out of PNG, airport officials would say to me: “we are the same”.
Once at Cuppa Café at Vision City, one elderly man came to greet me and said: “welcome to PNG. This is your home. When you go back to your country, tell them you saw family in PNG”. I have not read archeological evidence on the connection between the people of PNG and Africa but the similarities are striking!
It is a pity that many of you may not find time to experience the pure beauty of this country. PNG is a stunning collection of beautiful islands, river systems, swamplands, jungles, mountain ranges and extremely warm people. I am proud to add my voice to the chorus of welcome messages you have already received – welcome to PNG the land of the unexpected.
I return to the topic of the day.
I propose to discuss the topic in broad terms and deal with issues of personal and institutional accountability, without in anyway being prescriptive, because, in my mind, “ one size fits all” model to hold judicial officers accountable does not exist, and it would not be prudent to attempt to develop same. The topic: Judicial accountability is very broad and has many elements. It includes: the process of selecting judges, disciplinary proceedings against judges, criticism of judges, recusal and declaration of assets and liabilities, and many more.
I have been privileged to serve as a judge in several jurisdictions, at the national and international level, including in this beautiful country, PNG, the land of the unexpected, and I am able to say, without fear of contradiction, that in all of them the issues surrounding independence and accountability are essentially the same.
Across the globe, judicial accountability has received increasing attention in recent years. It is generally accepted that judges must be held accountable for their involvement in human rights violations, breaches of ethical obligations and corruption. Yet in many developing countries judicial accountability remains a sensitive topic. Some take the view that judicial accountability is incompatible with judicial independence. A prevailing theme in contemporary discourse on the rule of law is whether judicial independence and accountability are compatible, or whether accountability should be viewed as a correlative obligation of independence?
The extent to which the judiciary as an institution is accountable depends, to a large extent on the attitudes, mindset, orientation and behaviour of individual judges. It is my considered and respectful opinion that we must have a mindset that says we are the servants of the people. Legal systems across the world have been grappling with balancing the independence of the judiciary and judicial accountability. While respecting the independence of the judiciary, a right balance must be struck between judicial independence and accountability. In my mind judicial independence and accountability complement each other. Whilst there is no specific formula to balance these two ideals, any mechanism meant to foster judicial accountability must nevertheless not endanger judicial independence.
My basic premise of departure is that in any democratic state all exercise of public power, necessarily demands some form of accountability and that the judiciary is no exception. In this paper, I suggest that accountability is not only complimentary to independence but is essential in terms of ensuring public confidence. In addition to enhancing public confidence, judicial accountability also reinforces the legitimacy of the judiciary as a third co-equal arm of the state. It is important that judges should not consider judicial independence to be a shield against being accountable.
The judiciary in any democratic state exercises delegated power by the people and it is entrusted with providing a very important service to the people – the dispensation of justice. It may be true that many amongst us never think of the judiciary as a service provider. The truth is that it is. The people have genuine and legitimate expectations of how the judiciary should exercise its mandate.
The judiciary provides justice to the litigants and the public according to law. In order to earn the confidence and trust of the people the judiciary must be efficient. We need, at all times, to be conscious of our duty to deliver expeditious, affordable and quality justice to the people. The public expects their judiciary to deliver justice in a transparent manner. As is often said publicity and openness is the very soul of justice. The public expects their judicial officers to be independent, impartial, fair and competent.
The wretched of the earth: the homeless, the landless, those unjustifiably discriminated against, the hungry and those with no immediate name recognition or status in society, once they enter our courts, litigating against whosoever, the rich and the powerful, expect same treatment. Even the all – powerful state once it is sued, in the eyes of the law becomes just a litigant, and is not entitled to special treatment, unless as may be prescribed by law.
The public desire a justice system that is fair, predictable and accessible, one that produces reasonably predictable outcomes and in the event of a departure from what precedent has laid, a compelling or reasonable explanation for it. Whilst we should not be unduly enslaved by precedent we should not lightly and without justifiable cause cast it aside.
We must account why we depart from precedent if we decide that a particular precedent that has governed the lives of people must be cast aside as untenable. We must, as may be necessary, develop the law to keep pace with societal development. Judges should not consider themselves sacred cows. We are not. We are not free to do what we please in accordance with our whimsical preferences, neither should we be a law unto ourselves or in any way be the overlords of the constitution that created us. Being accountable is essentially about being answerable to the people, through the constitution, the wielders of sovereign power. In suggesting that we are accountable to the people, through the constitution, I am not suggesting that public opinion directs us. Public opinion cannot and should not override the constitution.
Judicial accountability, of necessity differs in character, extent and approach from the accountability expected of the executive and the legislature. Judicial accountability must be balanced by a sufficient degree of protection for judicial independence. The executive and the legislature are directly accountable to the electorates. We are accountable to the people through the constitution.
As I indicated earlier, judicial accountability is necessary to secure the legitimacy of the courts and to enable them to withstand possible incursions on their authority from other branches of the state and be able to deal with concerns that are often expressed, directed often at common law countries, where judges are not elected, that by virtue of not being elected, they are “anti – democratic” or “counter- majoritarian”. As is often said, the legitimacy of the administration of justice, is a function of the extent to which the courts enjoy the broad confidence of the public.
I have often heard members of the public, including some lawyers, suggest that we are not accountable. However, many of us here would take the view that we are more accountable than the other branches of the state. Our long training, ethics, traditions and conventions make it obligatory to account. We account for our decisions by sitting in public, giving reasons for our decisions and delivering judgements openly, in public, and permitting those who may not be happy with our decisions to appeal.
One cannot over emphasise the importance of giving reasons for a decision. This is a primary means of judicial accountability. On occasions the urgency of the matter may necessitate an immediate order granting or refusing the relief sought. Such a decision is often followed by reasons for the decision.
Closely connected to the duty to give a well-reasoned judgment is the fact that the decisions of the lower courts are subject to review or appeal within the legal system. This is one of the tried and tested means by which judicial accountability is pursued in a number of jurisdictions across the world.
Another important aspect of external accountability relates to regular publication of judgements and reviews by scholars. This tends to promote sound court decisions as the judges will be conscious of the fact that the decisions that they render will be scrutinised.
A further aspect of judicial accountability is the need to deliver judgements expeditiously. Long delays in resolving disputes and in delivery of judgements in particular, is function of many reasons, including availability of resources and conditions of service. Whilst any undue delay is regrettable, delays in matters concerning the liberty of the subject are to be avoided at all costs.
The question that often arises is to whom are judges accountable? Most judicial officers would say to the constitution and our conscience. A story is told of a conversation between Mr. Justice Learned Hand, of the United States and his clerk, which went thus:
“Sonny…to whom am I responsible? No one can fire me. No one can dock my pay. Even those nine bozos (justices) in Washington, who sometimes reverse me, can’t make me decide as they wish. Everyone should be responsible to someone. To whom am I responsible”? The judge then turned and pointed to the shelves of his library and said: “To those books about us. That’s to whom I am responsible.”
It is also said that Lord Donaldson, the former English Master of the Rolls once said: “Judges are without constituency and answerable to no one except their consciences and the law”.
A friend of mine, Justice (Lot) Moroka of the Botswana High Court, our literary giant, finds being accountable to the conscience problematic because some consciences are not compatible with the constitution. The powers of the courts to strike down legislation as being ultra vires the constitution has led to renewed calls for greater judicial accountability. Judicial corruption has also dominated judicial accountability debates especially in Africa and many other developing countries. There is a general perception that high rates of judicial corruption are prevalent in developing countries, and this makes judicial accountability an important tool in promoting the judiciary’s responsibility to society.
A distinction is sometimes made between the individual accountability of judges and the institutional accountability of the judiciary as a whole. A survey of the literature on judicial accountability identifies four basic elements of it, which are transparency, political accountability, personal accountability and public accountability. These elements of judicial accountability hinge on identifying to whom judges are accountable to and the mechanism to ensure that accountability. Transparency is an essential and critical prerequisite to judicial accountability. It necessarily follows that, transparency is the key to both judicial independence and accountability. Transparency entails several factors. First, judicial accountability is strengthened when judges are appointed on merit using a transparent judicial appointment criteria.
It seems incontrovertible that an open and participatory judicial selection system has better prospects of selecting more competent judges. Invariably, judges appointed in such a manner are better placed to administer their judicial functions in a fair and impartial manner. They are more likely to be sensitive to their obligation to account. What then are the qualities a candidate of judgeship must possess? Many decades ago, a British Lord Chancellor is alleged to have said, in speaking of his power to appoint judges:
“I like my judges to be gentlemen. If they know a little law so much the better”.
I know that by today’s standards the above statement may be objectionable on many grounds, including that it appears sexist. I am certain that today, many amongst us would prefer a much more elaborate and rigorous criteria that includes the following: experience in the practice of the law, demonstrated superior knowledge of the law, superior analytical skills, clarity of thought as demonstrated through written expression, ability to work under pressure requiring ability to go through voluminous documents in any area of the law, integrity, courage, discretion and open –mindedness.
A famous but probably untrue story is told that a former US President was asked by a journalist whether he ever made a mistake. The President said: “Yes, I made two mistakes and both of them are sitting in the Supreme Court”.
The President is reported to have been referring to the appointment of Chief Justice Earl Warren and Justice William Brennan, who turned out to be more liberal than the conservative appointing authority had thought. As many of us here may well know, once appointed judges choose their own path. In the US they say: “You shoot an arrow into a far distant future, when you appoint a justice.”
The process of appointing judges is as important as the process of their removal. Both processes must be done in a transparent manner. The removal of judges must be fair and should never be politically motivated. A transparent mechanism of registering complaints against judicial impropriety is an important aspect of judicial accountability. It leads to greater public confidence in the judiciary. Disciplinary proceedings against judges should not be held in a secretive manner as that tends to undermine public confidence and trust in the judiciary.
To this extent, an open disciplinary system coupled with public access to court records increases transparency in the whole adjudicative process. In some jurisdictions, the judiciary publishes annual reports which are an important information tool which promotes public debate concerning the judiciary’s activities. It is also important as a form of accountability for Chief Justices to regularly report to the public about their performance and challenges. Many countries are increasingly fostering judicial accountability through judicial codes of conduct which go a long way in promoting internal accountability. Judicial codes of conduct are primarily meant to ensure that the judiciary behaves in a manner that is consistent with their constitutional mandate and the expectations of the people.
In some jurisdictions such as South Africa, the Judicial Services Act establishes some structures to deal with judges’ discipline: Judicial Conduct Committee (JCC) and Judicial Conduct Tribunal (JCT). The JCC which meets from time to time to consider complaints against judges is chaired by the Chief Justice. In PNG, judges have since independence been accountable under the Leadership Code which recognises the special roles judges play as leaders in society and the corresponding responsibility that it entails.
Disclosure of assets and liabilities is an important form of accountability. In some jurisdictions judges are required to disclose their registrable interests which include: immovable property, shares, directorships and judges are prohibited from holding any office of profit, or receiving payment for any service, other than that rendered by virtue of being a judge.
Other mechanisms of enhancing judicial accountability have been formulated such as performance evaluations and judicial training for judges. Performance evaluations for judges are now a common feature in many jurisdictions. In other jurisdictions judges are required to report to the Chief Justice about their load, disposal rate and the extent and age of reserved judgements. If properly done, performance evaluations can encourage high standards of professionalism on the part of judges. However, care must be taken that such evaluations must not be a mechanism for witch-hunting, especially if judges render politically unpopular decisions. A performance evaluation of judges is a sensitive area and must be done with extreme care.
The other way of accounting to the public is to accept that the judiciary is not above genuine and informed criticism. Any criticism against the judiciary must be sincere and well informed and not malicious and simply intended to bring the judiciary into disrepute. Judicial officers should not take the title “My Lords/Ladies and “Your worships” literally and as suggesting that they cannot make mistakes. Judges are human. They make mistakes.
Even the apex courts make mistakes. As former justice of the US Supreme Court, Robert H Jackson, once said of the apex courts: “We are not final because we are infallible, but we are infallible only because we are final”. In regard to criticism of the Judiciary, Sir Anthony Mason in an article, entitled: “The Judiciary, The Community and the Media (1998) ALJ 33 at 40, stated that:
“Like other public institutions, the judiciary must be subject to fair criticism and, if the occasion demands it, trenchant criticism. What I am concerned with is response to criticism, particularly criticism that is illegitimate and irresponsible.” In India, Mr. Justice Bhagwati, the former Chief Justice of India, in an article entitled: “ Independence of the Judiciary In a Democracy, Human Rights Solidarity – AHRC Newsletter – Vol.7 (April-July 1997) at p.34 stated that:
“There is a pernicious tendency on the part of some to attack judges if the decision does not go the way they want or if it is not in accordance with their views. Of course, there is nothing wrong in critically evaluating the judgement given by a judge because, as observed by Lord Atkin, justice is not a cloistered virtue and she must be allowed to suffer criticism and or respectful, though outspoken, comments of ordinary men and women. But improper or intemperate criticism of judges stemming from dissatisfaction with their decisions constitutes a serious inroad into the independence of the judiciary and, whatever may be the form or shape which such criticism takes, it has the inevitable effect of eroding the independence of the judiciary…”
As many of us here would agree a malicious and ill-informed attack on decisions of judges represents an attempt on the part of those who indulge in such criticism to coerce judicial conformity with their own notions of justice and preconceptions.
It is often an attempt to influence the decision-making process. The best protection against such ill-informed attacks is to deliver well- reasoned judgements based purely on facts and law. It is of critical importance, in a democratic country governed by the rule of law that every decision be made independently and impartially by judges having regard to the evidence and the law and not under the pressure of one group or a litigant who is simply unhappy with the decision of the court.
A judge should disqualify himself for reasons of apprehension of bias, where it is proven, by cogent and credible evidence that, he has an interest in the case before him, which interest may be direct, indirect, pecuniary or otherwise. Judges should not recuse themselves to avoid complex and involving matters. The onus rests with the applicant. In considering recusal it must be borne in mind that sometime absolute neutrality is impossible – and may even be undesirable.
In conclusion, it is worth reminding ourselves that to do justice according to law is what we are about. That is our core mandate. We come from different jurisdictions; at different stages of development and with unique challenges. Our approaches to the rule of law – particularly the approach of the executive to decisions of the courts often differ. Two examples illustrate this point.
It is recorded that in 1832 the Cherokee Indians won a landmark case upholding their land rights against the invasion of white colonial settlers. The then President sent troops to ensure that the decision was not enforced. In 1955, in Brown v Board of Education, the US Supreme Court ordered an end to segregated education, under the infamous “separate but equal doctrine”. Contrary to the position indicated above, in India, the then President of the US, notwithstanding his personal misgivings and considerable public opposition to the Supreme Court decision, sent federal troops to ensure that the ruling was enforced.
Judicial accountability is linked to judicial independence. The former must not suffocate the latter. The Rule of law, which includes the independence of judges has to be continuously fought for and improved. Judicial independence earns judicial officers respect. Such respect must be earned and not demanded – and we can only earn it if we are accountable.
*Dingake is a Judge of the Supreme and National Courts of Papua New Guinea, Adjunct Professor of Law, College of Business, Law and Governance, James Cook University, Australia and Honorary Professor of Law at the University of Cape Town, South Africa.