PROMOTING A CULTURE OF JUDICIAL ACCOUNTABILITY
CHIEF JUSTICE IVOR ARCHIE
WHY JUDICIAL ACCOUNTABILITY Judicial Accountability is a requirement of International Law
The Preamble to the UN Human Rights Council Resolution1 states, ‘Stressing the importance of ensuring accountability, transparency and integrity in the judiciary as an essential element of judicial independence and a concept inherent to the rule of law, when it is implemented in line with the UN Basic Principles on the independence of the judiciary and other relevant human rights norms, principles and standards.’
Article 11(1) of the United Nations Convention against Corruption (UNCAC) provides: Bearing in mind the independence of the judiciary and its crucial role in combatting corruption, each State Party shall, in accordance with the fundamental principles of its legal system and without prejudice to judicial independence, take measures to strengthen integrity and to prevent opportunities for corruption among members of the judiciary. Such measures may include rules with respect to the conduct of members of the Judiciary.’
The Bangalore Principles of Judicial Conduct:’…These principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards, which are themselves independent and impartial, and are intended to supplement and not to derogate from existing rules if law and conduct that bind the judge.’
Latimer House Guidelines on Parliamentary Supremacy and Judicial Independence. Article 1 provides that each institution is ‘the guarantor in their respective spheres of the rule of
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law, the promotion and protection of human rights and the entrenchment of good governance based on the highest standards of honesty, probity and accountability’.
2007 Nuremburg Declaration provides that, ‘Justice is understood as meaning accountability and fairness in the protection and vindication of rights and the prevention and redress of wrongs.’
Judicial Accountability provides a balance to the concept of judicial independence Then Chief Justice Ernest Sakala, Chief Justice of the Republic of Zambia at the Southern Africa Judges Commission Meeting in 2005, stated, ‘Accountability of the judiciary may be to the law, to the Executive, the Legislature or to the public at large. Judicial criticisms by the Executive, Legislature, the public and the press are a recognition that the independence of judicial officers is not absolute but is subject to certain limitations…In the modern environment, the concept of accountability, permeates public life. In a democracy, based on the rule of law, it is now the expectation of every citizen that all aspects of government ought to be highly accountable. It is probably also a fair conjecture that the same citizen would characterise the judicial branch of Government as being in need of greater accountability.’
’ Former Chief Justice Michael de La Bastide (now the Right Honourable) at an address at the Commonwealth Magistrates’ and Judges’ Association Conference, Barbados, July, 2001, on the topic. ‘The Pressures on the Judicial Officer from the Administration’, stated ‘...I am receptive...to any suggestion
for making the Judiciary more accountable, but any measure put forward for this purpose must be rejected as unnecessary and unacceptable if it diminishes the independence of the Judiciary or impairs its co-equal status with the other two arms of the State.
MECHANISMS FOR DISCHARGING DUTY OF ACCOUNTABILITY Page 2 of 6
Open courts (access to records)
Public fact-finding (judicial officers)
Transparent proceedings (transcripts)
Automatic review by the appellate process
Reasons for decisions-public pronouncements and written decisions
Submission to finance and audit laws
Public Accounts Committee (Accountability to Parliament)
Adversarial fora
Media scrutiny
Independent Constitutional Commissions
Guidelines for Judicial Conduct
Joint Bench/Bar committees
Adequate and appropriate disciplinary process. In Trinidad and Tobago the process for disciplining a judge is woefully inadequate. There is no provision for minor infractions. Section 136 of the Constitution and continuing provides for a multi-phased process which can lead to a judge’s dismissal entirely. However, where the behaviour complained of does not necessitate that level of intervention, there is no other remedy available to the Chief Justice as administrative head over the judicial officers.
WHAT ARE JUDGES GENERALLY ACCOUNTABLE [FOR] To uphold the rule of law and as guardians of the constitution
The constitution is a living, breathing document. It is the judge, who, by his interpretation of its provisions in the context of the particular issues before him, gives life to the
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instrument so that it meets the justice of the case. Lord Chief Justice of England, Mr. Justice Igor Judge stated, ‘...ultimately, however, it is the judges who are guardians of the rule of law. That is their prime responsibility. They have a particular responsibility to protect the constitutional rights of each citizen, as well as the integrity of the constitution by which those rights exist.’ Further,The Hon. Mr. Justice Hugh Small, Judge of the Commonwealth of the Bahamas in a speech on Judicial Power and accountability in 2000 stated, ‘...in the execution of their duties, members of the judiciary have power to not merely interpret the constitution and the law, they have the power to make decisions that affect the human and property rights of individuals. ‘2. Development of the law
In most Caribbean jurisdictions archaic pieces of legislation which reflect historic factors of discrimination are still found on the books. In Trinidad and Tobago the constitution, which is the primary instrument which purports to protect and guard the fundamental rights, liberties and freedoms of the citizens of a country-the very persons who will hold the Judiciary accountable for the protection of those rights-is in essence an outdated document which cannot be taken to be adequately responsive to a 2016 society. Many concepts, social media for example, which raise novel issues of privacy, were not in existence at the time that the provisions were entrenched. It is not good enough for judges to await the legislature to update and amend the laws and plead in defence Sir Henry Maine stated, ‘Social necessities and social opinion are always more or less in
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advance of law. We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to reopen. Law is stable; these societies we are speaking of are progressive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed’ To keep abreast of international developments and engage in continuing judicial education
Internationally, many so-called first world countries have galloped along in the sphere of humanitarian and human rights law and have brought some of their domestic laws into alignment with established international best practice. Judiciaries are increasingly being required to make strong efforts to bring domestic judicial processes and protocols in line with internationally accepted standards. In promoting a culture of judicial accountability, there must be an awareness that judges, though independent arbiters of the law, are part of an international judicial fraternity and should be among the thought leaders in society. They carry the heavy responsibility of shaping and interpreting the law to meet the ends of justice.
Timely delivery of judgments
To uphold an accepted standard of conduct
To honour his oath by executing his duty, ‘without fear or favour’. .
TO WHOM IS THE ACCOUNTABILITY OWED
To the public at large
To the individual litigants/the court’s clients before him
To his/her colleagues (the institution)
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Legislature (Public Accounts Committee(Accountability to Parliament)) accountability for expenditure . Note, however, that there are limitations on such accountability. The Latimer
House Principles state, ‘Sufficient and sustainable funding should be provided to enable the judiciary to perform its functions to the highest standards. Such funds, once voted for the judiciary by the Legislature, should be protected from alienation or misuse. The allocation or withholding of funding should not be used as a means of exercising improper control of the judiciary’ Ivor Archie Chief Justice of Trinidad & Tobago
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