The right kind of scrutiny

Many are those who are under the wrong perception that our members of the judiciary are in no way answerable to any supervisory authority. In actual fact this was certainly the case in the past. However this is not quite so today. On June 3, 1994 the Commission for the Administration of Justice was created. The aim behind this authority was primarily to introduce, for the first time, the concept of accountability for the judiciary.

In truth there was an earlier attempt in this direction in the early 1980s.

The mechanism that was introduced back then was however interpreted, perhaps rightly so, as constituting undue inference by the executive.

In this regard it must be stated that the board then introduced was constituted solely of members representing the government, a far cry from the make-up of the present Commission. Worse still, its terms of reference were not compatible with the entrenched provisions of our Constitution guaranteeing absolute independence to our Courts. On account of this, the idea was abandoned and the relative law repealed.

A new approach was adapted in the early 1990s. The introduction in our juridical system of the Commission for the Administration of Justice was not exempt from initial suspicion and resistance even from prominent members of the bench. This notwithstanding, nowadays no one refutes the necessity of having a means of ensuring a certain amount of accountability for the judiciary so long as this would not in any way signify undue interference.

In truth, experience has shown us that the present authority does not have the legal means to fulfil its functions.

Our President, who presides over this Commission, has lately gone on record affirming what I have just stated and subtly suggesting that it could perhaps be time to revisit the relative law. Furthermore, in his customary speech commemorating the beginning of the forensic year the President of the Chamber of Advocates also took the occasion to dwell on the issue of judicial accountability.

He stressed - and I fully concur - that our Courts deserve all the esteem and respect but argued that they can only preserve such prestige if they were to appear more answerable to the public in line with other members of our country's top institutions. Again it must be emphasised that all this was stated within the framework of the inalienable principle of the independence of the judiciary.

As Shadow Minister of Justice I felt that I had to take this issue one step further.

As our Constitution stands today, there's not much more that can be done. In recent times and under the previous Minister of Justice the idea was floated to periodically publish court statistics in order to publically scrutinise the performance of particular members of the judiciary.

This strategy of naming and shaming proved unsatisfactory to say the least, as the performance of our judiciary cannot be measured in this fashion for obvious reasons, and here again the idea was justifiably abandoned.

In Parliament I therefore had occasion to invite the present Minister of Justice to discuss this issue with the Opposition in a cordial fashion.

I must assert however that I am adamantly four square behind the relative constitutional provisions guaranteeing absolute independence to our members of the judiciary.

I would therefore be exceedingly reluctant to concur with proposals aimed at disturbing those provisions. On the other hand as I like to say, times change and we have to learn how to change with them. In this day and age there no longer a place for sacred cows and no matter what position you may hold you are expected to be answerable for your performance.

In the final analysis, our Constitution always held the key to our problem.

The judiciary has always been held answerable to Parliament.

As things stand today however, Parliament will only intervene according to article 97(2) of our Constitution in instances of impeachment. Perhaps the way forward is to increase the powers of parliamentary scrutiny in other instances as well.

Together with other parliamentarians, I have always highlighted the necessity of introducing, as exists elsewhere, a standing parliamentary committee on justice ideally chaired by a member of the Opposition. Parliamentary scrutiny after all cannot definitely be interpreted as undue interference by the executive, since the executive itself is answerable to Parliament and this institution is the only one which resonates universal suffrage.

The aforesaid is merely food for thought since undeniably the issue is a delicate one and must be debated with great caution and foresight.

On the other hand, the prestige and respect our courts once enjoyed is fading and one way of reversing this phenomenon is surely to make our judiciary appear closer to the common people. This can only be done by a form of accountability.