:GOOD GOVERNANCE: ELEMENTS OF THE INDEPENDENCE OF THE

JUDICIARY.BY

DR. ATUDIWE P. ATUPAREFACULTY OF LAW, UNIVERSIY OF GHANA, LEGON

• We will begin this lecture with the discussion of the classic case of Prohibitions del Roy(1607) 12 Co. Rep. 63. In this note, Sir Edward Coke, then Chief Justice of the Common Pleas, described his reaction to the suggestion that the King, as the fountain of justice, could personally

sit and decide matters in any court

Cont.In the presence of King James I, Coke said the following:

• . . . [I]t was answered by me, in the presence, and with the clear consent of all the Judges of England, and Barons of the Exchequer, that the King in his own person cannot adjudge any case, either criminal . . . or betwixt party and party . . . but this ought to be determined and adjudged in some Court of Justice, according to the law and custom of England; ...

• [I]t is commonly said in our books, that the King is always present in Court in the judgment of law; and upon this he cannot be nonsuit: but the judgments are always given per Curiam; and the Judges are sworn to execute justice according to law and the custom of England. . . . [T]he King cannot take any cause out of any of his Courts, and give judgment upon it himself . . .

Cont.

• The King was not pleased with this answer, stating that “he thought the law was founded upon reason, and that he and others had reason, as well as the Judges . . .” In short, if the law was reason and if the King could reason just as well as the judges, then the King could judge cases. Implicit in the King’s answer is the further idea, that as the King is sovereign his view of reason should necessarily prevail over that of his judges. Coke’s response to the King is a classic statement of judicial independence and the rule of law

Cont.

• The King thought he was above the law, and he eventually removed Coke from the bench in 1616. The protection of judges from this sort of political interference in England was not confirmed until the Act of Settlement, 1701, after which superior court judges have held their offices not at the Crown’s pleasure (durante bene placito) but during good behaviour (quamdiu se bene gesserint).

• After the Act of Settlement judges could only be fired for just cause, and after an address to both Houses of Parliament.

What is the Rationale for Judicial Independence?

• The judicial submission to a properly understood “conscience” of the constitution or law in a young constitutional democracy like Ghana requires a particularly independent judiciary. This is important for at least three reasons–

• (1) it puts the courts on a proper pedestal to achieve constitutional justice by understanding law or the constitution as an aspirational moral ideal for the wellbeing of the people without bowing to undue political interference

Cont.

• (2)as a necessary connection to (1) above, it fosters judicial protection of rights and other constitutional values necessary to preserve human dignity and the welfare of the people in the legal system; and

• (3)it helps the courts in a legal system to break with its authoritarian and politically negligent past and reconstruct a constitutional culture that supports the protection of constitutionalism, rule of law and human rights, values that frown upon impunity which allows actors within the state to transgress the legal system for mere partisan political gain

Meaning of Judicial Independence• Scholarship on the concept of judicial independence

abounds. Yet, these writings are less than clear on its nature and scope. One traditional conception of judicial independence, as posited by J.E.S. Fawcett, states that “independence is primarily freedom from control by, or subordination to, the executive power in the state.” J.E.S. Fawcett, The Application of the European Convention on Human Rights (Oxford: Clarendon Press, 1969) at 156

• Such a view correctly supposes that an independent court in a legal system must not be controlled by the whims of the executive.

Cont.

• But this may be too simplistic, for the legislative branch, or even the judiciary itself, may occasionally threaten judicial independence. In many jurisdictions, the proposed budget for the judiciary, drafted with or without consultation of the judiciary, must receive the blessing of the legislature.

• This may be true where, for example, the legislature (rather than the constitution) is the source of rules regulating judicial tenure. Germany is one of such cases.

Cont.

• This makes the concept a bit complex. A fundamental rationale for this state of complexity is that: what, in reality, constitutes independence of the judiciary is largely a function of a country’s history, constitutional structure, traditions, conventions and experience even though judicial independence in many polities around the world share a number of commonly held standards.

• These standards include security of tenure, financial freedom and decisional and institutional independence.

Dual-Conception of JI

• The concept is explained in the relevant literature from two distinct perspectives. Peter Russell stated these as the institutional autonomy of judges, and the actual behaviour of judges.

• While the former facet entails (though not exclusively) the collective as well as the individual autonomy of judges, the latter represents a standard of behaviour for individual judges in their relation to other political institutions within the political system.

Cont.

• Thus, Russell’s double-principled conception of independence is broader than Fawcett’s view, which limits the focus to only threats from the executive branch.

• Indeed it is possible to go further and develop a more liberal and malleable construction of Russell’s assertion to include interferences from the legislature and even the judiciary itself.

Cont.

• The difficulty with both Russell’s and Fawcett’s claims, though, is that they are constructed on Baron de Montesquieu’s theory of the separation of powers, according to which the three arms of government are to be wholly independent of each other in terms of personnel and functions. The immediate relevance of this to the institutional autonomy of the judiciary may be limited.

Cont.

• Shetreet counsels against the rigidity of this institutional separation thesis; he goes beyond freedom from the executive and legislative branches of government to direct our attention to the importance of judicial freedom from powerful non-governmental interests as part of the scope of the necessary status of independence. See Shimon Shetreet, Judges on Trial: A Study of the Appointment and Accountability of the English Judiciary (Amsterdam: North-Holland Publishing, 1976) at 17-18.

Cont. • He observes:• “[I]n modern times, with steady growth of

corporate giants, it is of utmost importance that the independence of the judiciary from business or corporate interests should also be secured . . . independence of the judiciary implies not only that a judge should be free from governmental and political pressure and political entanglements but also that he should be removed from financial or business entanglement likely to affect, or rather to be seen to affect him in the exercise of his judicial functions”

Cont.• This opinion has received judicial support. In

the Supreme Court of Canada, Justice Gonthier observed that “the pressure or interference with independence could come from any quarter or any person . . . for example, private parties or corporate giants”. R. v. Lippé [1991] 2 S.C.R. 114.

• If the institution of the judiciary is in the deep pockets of well-endowed corporate bodies whose chief aim is profit through business regardless of ethical propriety, the impartiality of judges required to uphold the rule of law and human rights is in danger.

Cont.

• What about the assertive behaviour of judges?• This is predicated on judicial impartiality. This

requires judges to be partial to the law and impartial to the parties. What is this?

• Justice Gerald Le Dain of the Supreme Court of Canada stated that “impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in particular”. R. v. Valente [1985] 2 S.C.R. 673

Elements of Judicial Independence1. A rough separation of powers, such that, in

general, executive and legislative functions of state are institutionally separate from judicial functions; the core elements of the judicial function must be performed by judges and not members of the other branches of state

2. where judicial or quasi-judicial functions are performed within the executive branch of state, individuals affected by decisions should have recourse to judicial review before independent judges to ensure decisions are rational, procedurally fair, and within the ambit of powers conferred by general laws enacted by the legislature.

Cont.

3. Judicial independence is both institutional and personal in dimension, so that it includes both the idea that judges are institutionally autonomous from the executive and legislative branches of state and generally impartial towards particular classes or interests in society (including, for example, powerful business interests); in other words, judicial independence and judicial impartiality are integrally connected, and the relationship between judges and both public and private actors is important.

Cont.

• 4. we are concerned to prevent both actual violations of judicial independence and the appearance that the principle is violated; in short, a “reasonable apprehension” of bias or interference should prevail rather than a test of subjective or actual bias or interference;

• 5. judicial independence implies financial independence, both of judicial institutions and of individual judges, so that, for example, judicial salaries and pensions should be appropriate and should not be susceptible to arbitrary or political interference, and courts should be given sufficient resources to operate effectively

Cont.

• 6. judicial independence implies administrative independence, so that judges themselves control the day-to-day operations of courts (when and where they sit; internal rules of procedure, etc.);

• 7. Judicial independence implies an appointment process that ensures, to the extent possible, that the decision on who becomes a judge is open, transparent, and non-partisan, whether by means of requiring parliamentary committee questioning of nominees, or vetting by a non-partisan, arms-length judicial appointments commission, or some other technique

Cont.8. judicial independence implies security of judicial

tenure in office, such that judges may not be removed or threatened with removal from the bench except in cases of obvious wrongdoing or improper conduct, ideally as established through some form of apolitical or non-partisan judicial or quasi-judicial process, or at very least upon address to the legislature;

9. judicial independence implies that judges should not just be protected from removal for making unpopular decisions, but protected in other ways from retaliatory acts by either public or private persons, for example, by protecting judges from civil suits and perhaps criminal prosecutions for things done in the course of their judicial duties.

Cont.

• This list is not exhaustive. It should be remembered, nevertheless, that in the final analysis the fruitfulness of the principle of judicial independence rests on its idea that the courts should be free, able and willing to exercise judicial power in interpreting and enforcing the law.

Judicial Independence: The Constitution and Judicial Culture in Ghana

• The judicial culture in Ghana can show signs of both vulnerability and independence. But the upshot of this is not sufficient to deny the existence of the right kind of strong tradition of judicial independence which will nourish the conception of law as a form of reason. Nor will it necessarily claim that courts in Ghana have not in the past or present been made vulnerable.

• State v. Otchere, [1963] 2 GLR 463.• Tsatsu Tsikata (No. 1) v. Attorney General (No. 1)

[2001-2002] SCGLR 189 and Tsatsu Tsikata (No. 2) v. Attorney General (No. 2) [2001-2002] SCGLR 620.

Examples of Constitutional Provisions

• Article 125(3) of the Ghanaian Constitution provides that “[t]he judicial power of Ghana shall be vested in the Judiciary”, and “neither the President nor Parliament nor any organ or agency of the President or Parliament shall have or be given final judicial power”.

Cont.• Article 127(1) protects judges from external influence,

providing that the judiciary, in the exercise of any of its judicial or administrative functions, including financial administration, “is subject only to this Constitution and shall not be subject to the control or direction of any person or authority.”

• Article 127(2) provides that “neither the President nor Parliament nor any person acting under the authority of the President or Parliament nor any other person whatsoever shall interfere with judges . . . in the exercise of their judicial functions” and all state organs and agencies “shall accord to the courts such assistance as the courts may reasonably require to protect the independence, dignity and effectiveness of the courts, subject to this Constitution.”

Cont.

• Article 144 protects the appointment procedure of the CJ and other justices

• The president is the sole decider of the morality of an appointee...Abban’s Case

• Removal is protected: Agyei Twum v. A-G & Akwetey

• Immunity from prosecution. Article 127• article 127(4) provides for all salaries,

allowances, gratuities and pensions payable to judges or persons serving in the judiciary, to be charged to the Consolidated Fund.

Cont.• To summarise, then, we may say that, on the

whole, judicial independence in Ghana enjoys a minimum level of formal constitutional protection. Under such constitutional guarantees, it is possible, at least in theory, for judges to perform their constitutional functions free from inappropriate interference. This conclusion is reached against the background reality that it is not possible, at least in practice, to achieve absolute independence. The three branches of government may interrelate in the interest of responsive and responsible governance. Indeed, meaningful independence does not require the hermetic sealing off of one institution from the other. Courts function under laws enacted and executed by other branches of state.

Conclusion:• Strong and independent courts are protectors of

constitutional entitlements, and true institutional bulwarks for the citizenry against serious invasions of fundamental rights and freedoms. Independence offers the courts the capacity to insert themselves in a meaningful but legally appropriate way between citizens and the government and to stand up against intimidations of all “outsiders”.

• In fact, independence is fundamental not only to do justice in a particular case, but also to individual and public confidence in the administration of justice. Without such confidence the system cannot command the public respect and acceptance that are essential to its effective operation.

Concl. Cont.

• Judicial independence allows the courts to avoid the harmful prejudice and short-sightedness to which elected officials sometimes succumb. It emboldens judges to uphold rights where democratic majorities are paralysed by prejudice or other more compelling political considerations.

• Independence of the Judiciary is crucial in protecting the key pillars of good governance such as the Rule of Law, Constitutionalism, Human Rights, Legality, Justice, Economic Empowerment, Institutional Efficiency, Social and Political Integration, etc

END

•Thanks for your kind attention.