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The Judiciary Part II - Constitution Watch Content Series
Veritas
November 02, 2011
Read Part
I
The
Judiciary Part II
Qualifications
of Judges
In Australia
and South Africa, the qualifications for appointment as a judge
are not specified with any precision. The South African Constitution
requires the JSC to take into account “the need for the judiciary
to reflect broadly the racial and gender composition of South Africa”.
In Zimbabwe the qualifications are that the appointee must either:
- have been
a judge of a superior court in a foreign country where the common
law is Roman-Dutch or English, and English is an official language,
or
- have been
qualified to practise as a legal practitioner in Zimbabwe for
at least seven years.
These qualifications
seem reasonable. Should the new constitution specify any others
– such as, age, race or gender, political opinions or background?
- Age: It
seems unnecessary to specify a minimum age for appointment to
the Bench. If a candidate has already served as a judge in a foreign
country, or has been qualified to practise in the legal profession
for seven years, then he or she should be mature enough to serve
as a judge. The question of a maximum age for judges will be dealt
with later, under security of tenure.
- Race or gender:
Should there be any racial or gender considerations, as required
in South Africa? There are arguments for and against this sort
of affirmative action. Race should be irrelevant 31 years after
independence. While women constitute a little over 50 per cent
of the population, the same does not apply to the legal profession
so there is smaller pool of qualified person to choose from. Gender
balance is desirable on the Bench. What must be avoided, however,
is over-emphasis of a person’s gender at the expense of
his or her ability and suitability for the office. The appointment
of judges who are not highly skilled is more likely to undermine
public confidence in the administration of justice than the appointment
of an unrepresentative judiciary.
- Political
opinions: Selection on the basis of a candidate’s known
conservative or liberal tendencies (as in the US) should be avoided.
Lawyers, like anyone else, have their views on political and social
issues, but a conscientious judge will avoid letting these views
affect his or her decisions. A litigant or accused person should
not feel that the case will be determined because of the judge’s
political views.
- Disqualification
of former politicians: Zimbabwe has a long tradition of appointing
former Ministers of Justice to the Bench. Some have been good
judges, some have not. There is no reason in principle why former
politicians should not be considered for appointment as judges,
but a sideways step from ministerial office to the Bench gives
the impression (a) that the appointment is a reward for political
services; and (b) that the appointee’s former political
allegiance will be reflected in his or her decisions.
Protection
from Undue Influences
Three core characteristics
of judicial independence are said to be:
1. Security
of tenure;
2. Financial
security; and
3. Administrative
independence.
Security
of tenure
A constitution
can give judges security of tenure by fixing clearly their terms
of office and ensuring that they cannot be removed from office without
good cause.
Term
of office
How long should
a judge stay in office? There are three possibilities:
- Life tenure
- Tenure for
a specified term
- Tenure until
retirement at a prescribed age.
The debate over
which of these to adopt centres on the need to remove senile and
debilitated judges from office, as against the need to retain experienced
and learned judges who are healthy enough to continue serving.
Giving judges
life tenure creates the risk of judges who are clearly incompetent
remaining in office well beyond their useful time. In the United
States, judges of the Supreme Court and Federal Court have life
tenure. The retirement age for judges in state courts in the United
States is variable; a number of states have no mandated retirement
ages, while others range from 70 to75 years of age.
Most other countries
have an upper age limit, after which a judge must retire. Zimbabwe
has the relatively young retirement age of 65, with a possible extension
to 70 if the judge so elects and produces a medical report showing
that he or she is mentally and physically fit to continue in office
(section 86(1) of the Constitution).
Any specified retirement age is inevitably an arbitrary figure.
There is usually no scientific or sociological reason to pick on
a particular age as the time when an individual should retire.
The third option
– tenure for a specified period – appears to be unusual.
Only the Constitutional Court of South Africa seems to have adopted
that system. Judges of that court hold office for a non-renewable
term of twelve years or until they reach the age of 70 years, whichever
occurs first. The idea was to ensure a regular rotation of judges
in the Constitutional Court, so that constitutional interpretation
reflected changing attitudes of society.
Removal
from office and grounds for removal
Obviously judges
sometimes have to be removed from office, and the grounds for doing
so and the procedure to be followed should be laid down in the constitution.
In Zimbabwe,
a judge may only be removed from office for inability to discharge
the functions of his office, whether arising from infirmity of body
or mind or any other cause, or for misbehaviour (section 87 of the
Constitution). These grounds are similar to those specified in many
other countries such as Botswana, Zambia, Namibia, Australia, Canada
and India; South Africa and Uganda add gross incompetence as a further
ground.
“Misbehaviour”
is not defined in our Constitution or in any of the constitutions
mentioned in the previous paragraph, but it can be taken to mean
misbehaviour in matters concerning the office of judge and would
include a conviction for an offence that would render the person
unfit to carry out judicial functions. Official misconduct and neglect
of official duties would probably constitute misbehaviour. Whether
incompetence (in the sense of persistently reaching illogical or
perverse decisions) would constitute misbehaviour is less than clear,
but it could arguably be regarded as inability to discharge the
functions of the office. A poor legal knowledge may also fall into
this category.
The new constitution
should state the grounds for removal of judges as broadly as they
are stated in the present Constitution, but should perhaps add gross
incompetence as a further separate ground. And, if a judicial code
of ethics is formulated (see below), serious breaches of that code
should constitute misbehaviour meriting removal from office.
Procedure
for removal from office
In most constitutions
the procedure for removing judges from office is lengthy and cumbersome,
which ensures that judges cannot be lightly threatened with removal.
In Zimbabwe,
if the President considers that the question of the removal from
office of the Chief Justice ought to be investigated, he must appoint
a tribunal under section 87 of the Constitution to inquire into
the matter. All the members of the Tribunal are chosen by the President;
most are judges or former judges, but the President can appoint
one or more legal practitioners nominated by the Law Society. However,
he does not have to do this. If the tribunal recommends that the
President should refer the question of removing the judge to the
JSC, the President must do this; and if the JSC recommends the judge’s
removal the President must remove him or her from office. The Constitution
does not provide any formal system whereby allegations of misconduct
may be made by professional bodies or by members of the public.
It is possible, presumably, for a complaint to be made to the JSC
and for it to investigate in terms of section 15 of the Judicial
Service Act. It could then refer the complaint to the President
or the Chief Justice. As mentioned above, the JSC is not genuinely
independent, so the whole process of removing judges from office
is very much in the hands of the Executive.
Under the South
African Constitution, a judge may be removed from office only if
the JSC has found that the judge suffers from incapacity, is grossly
incompetent or is guilty of gross misconduct, and if the National
Assembly passes a resolution by a two-thirds majority calling for
the judge to be removed.
Under the new
constitution there should be a more open system of bringing allegations
of misconduct against judges. The South African example seems a
good one to follow. Whatever procedure is adopted in the new constitution,
it should apply to magistrates and other judicial officers, not
just to judges.
Financial
security
Financial security,
the second core element of judicial independence, should mean:
a. that the
judge’s income is not reduced while he or she holds office;
and
b. that judges’
recompense is adequate (bearing in mind that accepting judicial
office almost invariably means a drop in income) and appropriate
for the work and responsibility. The salary should be such that
there is not even the temptation, let alone the need, for a judge
to have a sideline business or to receive rewards that may raise
doubta about his or her impartiality.
Ensuring financial
security can present problems, particularly when inflation erodes
judges’ salaries. In Zimbabwe there is no legislative or constitutional
provision compelling the executive or legislature to adjust judicial
salaries for inflation. Some provision of this sort needs to be
inserted in the new constitution, so that we do not again see such
things as occurred in recent years, where the Reserve Bank bought
luxury goods for the judges.
Administrative
independence
In most countries
that follow the Westminster system of government, the courts are
administered by the Executive, that is to say, the registrars and
clerks who do the administrative work to keep the courts functioning
are members of the public service employed or at least paid by the
Executive. In Zimbabwe since the Judicial Service Act came into
operation in June last year, they have fallen under the control
of the Judicial Service Commission. It is debatable whether this
is necessary for judicial independence. In other countries the courts
have remained independent despite executive administration of the
courts; and even if the courts are given administrative autonomy
they inevitably lack financial autonomy because they are funded
from money allocated by the Executive and Parliament. The independence
of the judiciary is best maintained by the character of the judges
themselves rather than through administrative autonomy.
Ensuring
an Effective Judiciary
There is little
that a constitution can do directly to ensure the judiciary does
its work efficiently. Handing administrative control over the courts
to the judiciary in the form of the JSC is unlikely to enhance judicial
independence, as pointed out above, and it is unlikely to improve
efficiency either. Good judges are not necessarily good administrators.
Lack of finance has been cited as one of the reasons for the sclerosis
affecting Zimbabwe’s court system. The new constitution must
contain a provision obliging the government to provide the judiciary
with sufficient funds.
Perhaps the
best the new constitution can do is to permit the JSC to lay down
standards of efficiency to be observed by judicial officers, for
example, requiring them to be reasonably diligent, to attend court
when required, to work normal business hours, and perhaps to complete
their case-loads within a reasonable time. A judicial officer who
fails to observe these standards should be liable to disciplinary
action and ultimately dismissal.
Code
of Ethical Conduct
The Zimbabwean
judiciary no longer enjoys the high reputation for integrity it
had in the years immediately after Independence. There are good
reasons for this. The economy deteriorated from the mid-1990s, eventually
making it impossible for judicial officers to make ends meet on
their official salaries. This compelled them to engage in other
activities such as commercial farming and trading, and made them
more open to undue influence. The absence of an official code setting
out clear rules of ethical conduct made it more difficult for judicial
officers to resolve the serious ethical dilemmas with which they
were faced. The new constitution should oblige the JSC to draw up
such a code and should make it enforceable. Breaches of the code,
in other words, should be declared to be misbehaviour justifying
disciplinary action.
Final
considerations
No matter what
fine-sounding provisions are inserted in the new constitution to
secure judicial independence, such independence is meaningless if
the Executive does not respect the rule of law. Where the Executive
can direct the police not to investigate clear offences and not
to obey court orders that the Executive does not like, the rule
of law does not exist.
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