“A judge in modern plural society must consistently strive to educate himself about the way laws fall unequally upon different groups in the society. He must be alert, sensitive to the inequality of legal protection. With the best of his ability, within the governing laws, he should attempt to protect minorities from any unfair treatment and unjust discrimination,” AJIT PRAKASH SHAH, FORMER CHIEF JUSTICE, HIGH COURT OF DELHI INDIA delivering keynote address at the convention of the bar Association of Sri Lanka recently.
Judges should not abandon their role of protectors of human rights in free and democratic society. They should not defer to other branches when it comes to the question of proper balance of competing constitutional values he added.
Full text of his address follows :
My Lord, the Chief Justice of Sri Lanka Mr. Asoka De Silva and his companion Judges from Supreme Court of Sri Lanka, Hon’ble Mr. Sathya Hettige, President Court of Appeal and other Hon’ble Judges from Court of Appeal and High Courts, Hon’ble Mr. Milinda Moragoda, Minister for Justice & Legal Reforms, Attorney General Mr. Mohan Peiris, Solicitor General Mr. W.P.C. Dep, Mr.Shibly Aziz, President and other office bearers of Bar Association of Sri Lanka, learned Members of Srilankan Bar, ladies and gentlemen.
This is my first visit to this beautiful island country which is fondly called “the pearl of the Indian Ocean”. The judges and the lawyers of the two countries have been meeting each others in the international legal conferences and have been visiting the countries quite often. In the recent past, Justice Shiranee Tilakvardhana and Justice Imam visited India. Former Chief Justice Sarath Silva addressed a Human Rights Conference organised by Bombay High Court. However, there has not been effective judicial interactions between the two countries.
Indeed being part of this important function gives me an opportunity to interact with the Judges and lawyers in Sri Lanka and I consider addressing this distinguished gathering a great privilege for me.
The subject of my address is “Judicial Independence: Contemporary Development on Indian Subcontinent”. I shall present my address in three parts. I would first discuss the universal norms of judicial independence particularly in the context of ICCPR, the Beijing Principles and the Bangalore Principles. Then, I would try to present before you an overview of some of the important developments in my native country and also in Pakistan, Bangladesh and Nepal. Particularly, I would like to place before you some glimpses of lawyers’ struggle in Pakistan, and Nepal for the protection of the rule of law. Lastly, I will deal with the judicial accountability, which is inseparable part of the judicial independence.
ROLE OF THE JUDGE IN DEMOCRACY
Let me first make some preliminary observations. In a democratic society it is the duty of a Judge is to protect individual from abusive State action and to contribute to the meaning of the citizenship and civic entitlements. In performing this duty, the court must, inevitably, be in conflict with other branches, especially so in modern times where more and more political questions are brought before the court as legal questions and when the scope of judicial review over other branches is much wider than before. A wider judicial review carries with it much wider interest in the courts and widening tension between the court and the other branches of government. This conflict and tension will be unavoidable fallout when courts fulfil their constitutional role. Independent judges making unpopular rulings will often be an easy target for demagoguery, and both public and private actors will often be tempted to ignore their rulings. Judges should not abandon their role of protectors of human rights in free and democratic society. They should not defer to other branches when it comes to the question of proper balance of competing constitutional values. The real test comes when judges led by their understanding of the law and conscience arrive at a decision which is contrary to what other branches of government or other interests in society want. Something different from what “home crowd” wants.
There are other obstacles in exercise of judicial independence – internal ones. Judges are human beings, not disembodied spirits living in a celestial mansion. As the great US Judge Benjamin Cardozo reminds us “the great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by”. Exercise of judicial independence lies in conscious effort to neutralise the effect of personal philosophy and values in decision making. However, neutrality does not mean apathy to the plight of the parties. Neutrality does not mean indifference with respect to democracy, judicial independence or human rights. Neutrality means fairness and impartiality. It means the confidence of the parties and the people in the judges’ moral integrity and their conviction that the judge’s sole motive is protection of law and not his own power or position. Neutrality means giving weight to the arguments presented before the Judge regardless of the maker of those arguments. Everyone is equal before him.
A judge in modern plural society must consistently strive to educate himself about the way laws fall unequally upon different groups in the society. He must be alert, sensitive to the inequality of legal protection. With the best of his ability, within the governing laws, he should attempt to protect minorities from any unfair treatment and unjust discrimination. In the words of Justice Michael Kirby in a pluralistic society a judge’s role is essentially seen as an equaliser. He serves neither majority, nor any minority either. His duty is to the law and to do justice. He must ensure that diversity is respected and rights be protected.
JUDICIAL INDEPENDENCE: INTERNATIONAL PERSPECTIVES
The International Covenant on Civil and Political Rights (“ICCPR”) contains the fundamental rights that belong to human beings everywhere. Article 14.1 states:
“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law”.
This cardinal provision is derived from earlier statements of universal principles. It draws upon the historical experience of many lands. In the countries of the common law, judicial independence received important constitutional reinforcement when King James II of England was driven from the Kingdom in the revolution of 1688. His successors, William and Mary, were only accepted by the people on condition, amongst other things, that they promised to respect the tenure of the judges essential to their true independence of mind and of action. The principle, and the way it was achieved by revolution, ensured that for England, brutal intimidation of the judiciary would not again occur.
John Rudlege in his address in Parliament in 1802 said: “The Government may be administered with indiscretion and violence, offices may be bestowed exclusively upon those which have no merits than that of carrying votes at the elections, the commerce of our country may be depressed by nonsensical theories and public character may suffer from bad intentions, but so long as we may have an independent judiciary, the great interest of the people will be safe. Leave to the people an independent judiciary, and they will prove that man is capable of governing himself”.
It was this experience that led James Madison, in drafting the amendments to the United States Constitution, which became the Bill of Rights of that country, to assert:
“[I]ndependent tribunals of justice will consider themselves in a peculiar manner the guardians of these rights; they will be an impenetrable bulwark against every assumption of power in the legislature or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the Declaration of Rights”.
Judicial independence can be viewed at two levels. At the primary level, judicial independence is related to the notion of conflict resolution by a “neutral third”; in other words, by someone who can be trusted to settle controversies after considering only the facts and their relation to relevant laws. It is this type of independence that Owen Fiss has described “party detachment”.
Judicial independence, however, takes on critical significance when the government is one of the parties to a dispute, as the case then involves general issues of the rule of law. If the enforcement of this principle is to be entrusted to the courts, then it is absolutely essential that judges not be biased in favour of the government. Likewise, it is important that judges not be subject to control by the regime, and that they be shielded from any threats, interference, or manipulation which may either force them to unjustly favour the state or subject themselves to punishment for not doing so. This second trait of independence is what Fiss has called “Political Insularity”.
Three important perspectives arise from this discussion. First, a high degree of judicial independence is a necessary condition for the maintenance of the rule of law—ensuring that everyone is subject to the same legal rules. This is necessary to make sure that powerful people—particularly elected officials—cannot manipulate legal proceedings to their advantage. Secondly, in a constitutional government, only those laws that are constitutionally legitimate ought to be enforced, and courts must be able to do much of the work in deciding which laws survive this test. Thus, there is a need to ensure that courts are sufficiently independent to overturn legislations that subvert these values. Finally, in a democracy, it is important that constitutionally legitimate laws be given full effect. The worry here is that officials in the executive branch, or the current legislature itself, may interfere in the enforcement of statutes enacted by previous legislatures without bothering to go through procedural formalities. In the interest of democracy, courts must have sufficient autonomy to resist the temptations to give too much deference to current holders of economic or political power.
The guarantee of judicial independence is for the benefit of the people and not the judges. It is the protective right of all human rights. It is neither a right nor a privilege of the judges. Judges are accountable, like in the other branches of government, to political and civil society. An accountable Judiciary without any independence is weak and feeble. An independent Judiciary without any accountability is dangerous.
The twin concepts of judicial independence and judicial accountability now stand crystallised in The Beijing Principles on the Independence of the Judiciary, 1997 adopted at Manila by the Chief Justices of the Asia Pacific Region and The Bangalore Principles of Judicial Conduct, 2002. The essential values stated in the Bangalore Principles are: judicial independence, both individual and institutional, as a prerequisite to the rule of law; impartiality, not only to the decision itself but also to the process; integrity; propriety, and the appearance of propriety; equality of treatment to all; competence and diligence. It concludes with the need for effective measures to be adopted to provide mechanisms to implement these principles.
JUDICIAL INDEPENDENCE AND ACCOUNTABILITY: INDIAN EXPERIENCE
Today, the Indian judiciary with the Supreme Court at its head and 18 High Courts in the States is arguably the most powerful judiciary in the world. The superior courts, by which meant the Supreme Court and the High Courts, have jurisdiction not only over executive actions but also over legislation, and extend this even to review the validity of constitutional amendments. The Constitution of India contains a chapter on fundamental rights which bears a fairly close resemblance to the Bill of Rights in the US Constitution. They are enforceable in a court of law, and to use the words of Justice P.N. Bhagwati, the court is always on the qui vive for their protection and enforcement.
The Indian Supreme Court has been the protector of citizens’ liberty and has shown active concern about the rights of detainees and under-trials; police excesses including arbitrary arrests, custodial violence and other extra-judicial killings, conditions in prisons and other custodial institutions such as children’s homes, women’s homes and mental asylums and the rights of victims of crimes. The Indian Supreme Court has not subscribed to the theory of avoidance of political questions and has never declined to exercise its powers merely because a legal question has political overtones. In fact, on few occasions the Supreme Court’s interventions have helped in defusing volatile situations. (e.g. Ayodhya episode and reservation issue).
In the words of former President Mr.K.R. Narayanan: “It is not an exaggeration to say that the degree of respect and public confidence enjoyed by the Supreme Court is not matched by many other institutions in the country.” Whilst the Indian higher judiciary undoubtedly is most powerful judiciary in the world today and the societal perception of it is very high serious issues of judicial accountability have come to the fore. Experience demonstrates that the struggle for judicial independence is not separable from judicial responsibility and accountability.
Granville Austin, in his book, – “Working a Democratic Constitution: the Indian Experience” (1999), has dealt with the issue of judicial independence. Some portions therein summarise the experience of the first fifty years. He says: “The CJI during the Nehru period had virtually a veto over appointment decisions, a result of the conventions and practices of the time and the Chief Justice’s strength of character”. He quotes Mahajan, C.J. saying “Nehru has always acted in accordance with the advice of the CJI”, except in rare circumstances, despite efforts by state politicians with ‘considerable pull’ to influence him.
Despite this mutual respect, there were repeated confrontations between 1950 and 1973 during which the court invalidated several legislations on agrarian reforms. In 1967, in a property case, the Supreme Court by a majority of 6:5 Judges held that Parliament had no power to amend any fundamental right. While in 1970, the Supreme Court invalidated laws pertaining to bank nationalisation, abolition of privy purses etc. In 1971, amendments were introduced to the Constitution to re-assert Parliament’s right to amend every part of the Constitution and to make immune any challenge in courts to legislations made in pursuance of the directives of the state policy in Articles 39(b) and (c) of the Constitution. These constitutional amendments came to be challenged before 13 Judges of the bench of the Supreme Court in famous Kesavananda Bharati v. State of Kerala’s case [(1973) 4 SCC 225]. The Supreme Court by a majority of 7:6 held that the Parliament had the full power to amend the Constitution; but because it had the power only to amend, it must leave the basic structure or framework of the Constitution intact. In other words, Parliament in exercise of its constituent powers could not damage or destroy the “basic structure of the Constitution”. Kesavananda’s case had also held unanimously that the fundamental right to property was not the basic feature of the Constitution, and in that sense the judiciary conceded that it was for Parliament to decide what was the extent of the property rights in the Constitution and to determine the nation’s economic policies without the judiciary sitting in judgment over them.
The government of Prime Minister Indira Gandhi was not happy with the court verdict. Immediately after the Kesavananda decision, the government superseded three senior-most Judges of the Supreme Court in the appointment of the next Chief Justice of India. In the Kesavananda’s case, the outgoing Chief Justice and three senior-most Judges with four others had voted for restricting Parliament’s power of amending the Constitution. In 1975, an emergency was imposed in the country following upon Prime Minister Indira Gandhi’s disqualification in her election case. Many politicians, journalists and social activists were arrested under the Maintenance of Internal Security Act (MISA). The detentions were challenged but they were met with the government’s plea that the Article 21 was the sole repository of liberty, and that as the right to move for enforcement of that right had been superseded by the presidential order of June 25, 1975, petitions were liable to be dismissed at the threshold. This objection had been overruled by nine High Courts, who displayed remarkable and robust independence in upholding the fundamental freedoms of detainees who were arrested illegally or arbitrarily. The appeals against the High Court orders were heard by a five-Judge Bench in the Supreme Court. In ADM Jabalpur v. Shiv Kant Shukla [(1976) 2 SCC 521], the majority held that the effect of presidential orders suspending Article 21 is that the detainee will have no right to challenge the detention in the court. Justice H.R.Khanna showed great courage in negating this totalitarian claim of the government. He held that Article 21 could not be considered to be the sole repository of the right to life and personal liberty, and such a right could not be taken away under any circumstances without the authority of law in a society governed by law. Justice Khanna paid penalty for his dissent. He was passed over for the post of Chief Justice although he was then the senior-most serving Judge. It took another 21 months and people’s simmering anger for the state of emergency to abate.
After the lifting of emergency in 1977, on the ground of interference in judicial appointment by the executive, the Supreme Court was called upon to safeguard the independence of the judiciary from undesirable appointments and arbitrary transfers by the executive. Under the scheme of the Constitution, issues concerning appointment and transfer of Judges, their terms and conditions of service and their removal were initially thought to be predominantly within the domain of the Parliament and the executive. In a series of PILs the Supreme Court has, however, articulated a dominant role for the judiciary in this area. In S.P. Gupta v. UOI [(1981) Supp. SCC 87], the Supreme Court declared that the executive had the final say in a matter of appointment of Judges to the High Courts and the Supreme Court. More than a decade later, pursuant to a PIL, the correctness of this declaration was referred to a larger Bench. The resultant decision in Supreme Court Advocates-on-Record Association v. Union of India [(1993) 4 SCC 441] saw a larger Bench of the Supreme Court reversing the view in S.P. Gupta and declaring that the word “consultation” appearing in 124(2) of the Constitution should be read to mean “concurrence” thereby vesting the Chief Justice of India with the final say in the matter of appointments. The Supreme Court held that the power so vested in the judiciary would be exercised through a collegium consisting of the CJI and two most senior colleagues. In the third Judges case [(1998) 7 SCC 739] the Court answered a reference made by the UOI opining that the CJI must make a recommendation to appoint the Judge of the Supreme Court in consultation with four senior-most puisne Judges of the Supreme Court, and insofar as the appointment to the High Court was concerned, the recommendation must be in consultation with two senior-most Judges of the Supreme Court.
There is a considerable controversy about whether the court has not amended the language of the Article by purporting to interpret it. This new dispensation of appointment and transfer of judges laid down by the Supreme Court has not been well received in India. The Bar and other sections of the society have been often critical of this. Mr.T.R. Andhyarujina, a distinguished Supreme Court advocate, has said: “A collegium which decides the matter in secrecy lacks transparency and is likely to be considered a cabal. Prejudice and favour of one or other member of the collegium for an incumbent cannot be ruled out.” Justice V.R. Krishna Iyer has used harsher words in his criticism of the judgment: “An innovative instrumentality for nomination of appointees to the higher judiciary by a pro tem collegiums composed of the senior-most Supreme Court judges – an egregious fabrication, a functioning anarchy. A frank, sad, but respectful reflection is that a high-powered appointing authority has been hijacked from the Prime Minister by a Constitution Bench.”
Vesting the power of appointment only in the executive or the self-selection by the judges are both fraught with difficulties. Hence, the trend now in modern constitutions is to entrust the power of recommendations for judicial appointments to an independent council or commission. Such a council or commission is composed of representatives of institutions closely connected with administration of justice. Such commissions are now functioning in England and Wales and South Africa.
In this context, the 1998 European Charter on the Statute of Judges is worth noticing and it, inter alia, provides:
In respect of every decision affecting the selection, recruitment, appointment, career progress or termination of office of a judge, the Statute envisages the intervention of an authority independent of the Executive and Legislative powers within which at least one half of those who sit are judges elected by their peers following methods guaranteeing the widest representative of the judiciary (emphasis added).
LAWYERS’ MOVEMENT IN PAKISTAN: AN EFFORT TO RESTORE RULE OF LAW
The Objectives Resolution, adopted by the Constituent Assembly in 1949, provided that Pakistan was to be a state ‘wherein the independence of the judiciary should be fully observed.’ All of Pakistan’s constitutions have included the Objectives Resolution as a preamble, and the current (1973) Constitution incorporates it into its main body. (Constitution, Article 2A) The 1973 Constitution, like all its predecessors, contains explicit and unambiguous provisions guaranteeing judicial independence, including detailed provisions on the appointment, tenure, remuneration and removal of judges of the superior judiciary. (Constitution, Chapters 2,3 and 4)
In spite of this comprehensive constitutional framework, judicial independence has been a contentious issue throughout Pakistan’s history. Frequent coups and proclamation of emergencies and need and expectation of military dictators to have their actions sanctioned and approved by the apex court have progressively weakened the independence of the judiciary.
Ayub Khan had started appointing judges on the basis of political patronage, nepotism, and favouritism and this situation was compounded by Chief Justices promoting their own sons or sons-in-law, or those of their colleagues, on the bench. Hamid Khan in his book “Constitutional and Political History of Pakistan” observed:
‘Whenever a son returned from abroad, with or without a foreign law degree, or started law practice, he was widely introduced by his judge father to his uncle judges with the understanding that he should be looked after. Naturally, law practice of the sons and sons-in-law of the judges flourished overnight to the chagrin and frustration of the less privileged members of the Bar. They were engaged on fabulous fees with the expectation that they would obtain relief due to personal connections, which they actually did in many cases. Besides, they carried the awe for the members of the subordinate judiciary whom they easily frightened with their overbearing attitudes and arrogance. Those who did not make it in the law practice despite all the advantages and benefits, got themselves appointed as law officers and were eventually elevated to the bench.’
More seriously, the 1970s also saw the increased use of contempt of court proceedings against lawyers, including presidents of bar associations, who had publicly complained about judicial corruption and nepotism. The law was being used by the judges to silence criticism. These cases served as prelude to the Fifth Amendment of the Constitution in 1976 by General Zia ul Haq. This amendment changed the constitutional provisions concerning the length, tenure of the Chief Justice of Pakistan, which led to the immediate retirement of the incumbent Chief Justice and the elevation into the post of a judge more sympathetic to Zia.
Zia deployed a number of other measures to control the judiciary. The most radical one was purging the higher judiciary through the administration of a new oath. (This method for eliminating potential opposition from the judiciary was copied by Musharraf in 2000 and again in 2007). This required all sitting judges of superior courts to take a new oath which omitted any reference to the 1973 Constitution and insulated all actions of the martial law authorities from judicial review. The majority of the High Court and Supreme Court Judges took the new oath. In 1981, Zia promulgated the Provisional Constitution Order, which went one step further. This time it was not upto the judges to decide whether or not to take the new oath; only the judges expressly invited to do so were permitted to take the new oath and remain in their posts. Former Chief Justice Cornelius described this episode as “the rape of the judiciary”.
In the 1990s the Pakistan Supreme Court emerged as an increasingly powerful institution, deciding the fate of democratically elected governments and as a result becoming embroiled in the conflict between President and Prime Minister. During this period, public interest litigation also propelled the courts into becoming protectors of human rights. In the course of 1990s, the Supreme Court delivered several landmark judgments asserting independence of the judiciary. [Government of Sindh v Sharaf Faridi (PLD 1994 SC 105); Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324); Al-Jehad Trust v. Federation of Pakistan (PLD 1997 SC 84)]
In Al-Jehad cases, the Supreme Court held that the President has the right to appoint judges to the Supreme Court ‘after consultation with the Chief Justice’, had to be read in a manner that made this consultation ‘effective, meaningful, purposive, consensus oriented, leaving no room for complaint or arbitrariness or unfair play.
The court restricted the ability of the President to appoint ad hoc judges, confirmed the principle of seniority in the elevation of a judge to the position of Chief Justice of a High Court.
The Pakistan Supreme Court decided, for the first time, an important case against the Chief of Army Staff and President Musharraf, by declaring that his Government’s attempt to privatize a major state industry, Pakistan Steel Mills, was unconstitutional. [Watan Party v Federation of Pakistan PLD 2006 SC 697]. Chief Justice Chaudhry was accused of judicial misconduct. The proceedings against him before the Supreme Judicial Council were declared unconstitutional by the Supreme Court in July 2007. Restored as Chief Justice, Chaudhry was again removed following the declaration of an emergency on 3rd November 2007. Chaudhry was only able to resume his office almost 18 months later, on 21st March 2009, following street protests and unrest. Fourteen judges of the Supreme Court, led by Chief Justice Chaudhry, declared that the Proclamation of Emergency of 3rd November 2007, as well as the PCO, the Judges Oath Order, the first and second Amendment Orders, and the Islamabad High Court (Establishment) Order were ‘unconstitutional, ultra vires of the Constitution and consequently… illegal and of no legal effect.’
Role played by the Pakistan’s Bar in restoration of the rule of law is unparalleled in the judicial history. One writer observed that this is the first time in Pakistan’s history that lawyers have dropped their conflicting political affiliations and forged an unprecedented professional unity to restore the rule of law. More than 80,000 lawyers acted in solidarity to challenge arbitrary powers that the President exercised on a regular basis with no constitutional authority. Another writer observed that Pakistan’s lawyers were not, in fact, courting martyrdom, but their willingness to stand up for their convictions, and to suffer for them, has transformed their country’s legal and political landscape.
JUDICIAL INDEPENDENCE: STATUS IN BANGLADESH AND NEPAL
The Constitution of Bangladesh framed after its liberation also emphasised the separation of judiciary from executive. This important provision was not implemented for more than two decades. In 1999, the Supreme Court of Bangladesh issued 12-point directives in famous Mazdar Hossain case to ensure separation of judiciary from the executive. The successive governments had taken time again and again to delay the process. Finally, the judiciary of Bangladesh has been officially separated since 1st November, 2007. The problems of executive interference still persist. In July, 2009, the country’s President had forced the retirement of two District Judges for violating service rules. The two Judges as the President and General Secretary of the Bangladesh Judicial Service Association respectively led a demonstration on July 27 at the Bangladesh Secretariat. The order of removal had been passed without consulting the Chief Justice and thus clearly violated Article 116 of the Bangladesh Constitution. Eventually, the order was withdrawn by the government after a public outcry.
Nepal has also witnessed a courageous fight against the attacks on the judiciary by the then King. The interim Constitution of Nepal though promises an independent judiciary contains several provisions that contradict with the universal standard i.e. the provision that the Chief Justice can be assigned with other work than his regular job. The provision for appointment of ad hoc and additional judges, compulsion to take a fresh oath under the new Constitution and so on and so forth etc. In order to discourage the independent and progressive stance of the Supreme Court, the King appointed four additional judges beyond the sanctioned capacity of the Supreme Court. Nepal Bar Association successfully fought against these unconstitutional measures. A constituent assembly is now formed to create a new constitution and only time will tell whether the judiciary under the new constitution would be independent in true sense.
JUDICIAL ACCOUNTABILITY
No discussion on the subject of judicial independence will be complete without understanding of judicial accountability as judicial independence and judicial accountability are different sides of the same coin. When one talks of accountability, it is not accountability towards executive or the legislature. Judicial accountability is better understood as referring, as it does in the case of the rest of government, to institutional accounting, to political and civil society. Whereas insufficient independence may pull the judiciary away from acting in accord with law, accountability requires that it justify its actions in terms of legal compliance. The need to account for its actions may reduce the judiciary’s vulnerability to external pressures and will in fact strengthen the independence of the judiciary.
Accountability is commonly seen as a means of combating judicial corruption, but here again the relationship is more complex. Were corruption the only concern, certainly the British judiciary, widely acknowledged to be among the world’s most honest, would not be facing the current demand for more publicly transparent operations. Constitutional machinery for removal of a judge who is proved guilty of serious misconduct or incapacity will often be inappropriate, and for that reason ineffective, in the case of the judge, who is simply rude, repeatedly guilty of unjustifiable discrimination, keeping inappropriate company, sleeping on the bench, given to indulgence in alcohol, lateness, chronic delay in pronouncement of judgments. Thus, accountability aims at controlling a wider variety of performance problems – the broader issue of whether the judiciary’s actions correspond to societal norms some of them set forth in law and others of a less formal nature.
The usual recommendations for increasing accountability in general are not very different for the judiciary than they are for any other public institution. Broadly the concerns relating to accountability can be addressed on the following recommendations.
• Transparent systems for selection of judges’ publicized criteria and discussion of their application.
• Transparency of internal operations and their subjugation to pre-established rules; budgets, use of resources, salaries, assets declarations, standards of behavior and evaluation should be formally set and available for public review.
• Transparency of judicial decisions – public records of proceedings and publication of sentences
• Functioning systems for registering complaints on institutional operations or behavior of individual members.
CONCLUDING REMARKS
I may conclude by citing an excellent and pithy statement of Dato’ Dr.Cyrus Dass, the President of the Commonwealth Lawyers’ Association:
“Justice is a consumer product and must therefore meet the test of confidence, reliability and dependability like any other product if it is to survive market scrutiny. It exists for the citizenry ‘at whose service only the system of justice must work.’ Judicial responsibility, accountability and independence are in every sense inseparable. They are, and must be, embodied in the institution of the judiciary.”