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An Accountable Judiciary

The role of the judiciary in Vanuatu is very important. The determination of the rights of individuals and organisations rests solely on the truth of a matter which is determined according to the rules of evidence by an independent and impartial judiciary.

An independent, impartial, and informed judiciary holds a central place in the realisation of just, honest, open, and accountable government. A judiciary must be independent of the Executive if it is to perform its Constitutional role of reviewing actions taken by the government and public officials to determine whether they comply with the standards laid down in the Constitution and the laws enacted by the Legislature.

Therefore, judicial accountability is not performed in a vacuum. Individual judges must operate within a set of rules and in accordance with their oath of office which prevents them from thinking that they can do anything they like.

So, how do we hold individual judges accountable, and do we have a competent and reliable system in place?

The fact that individual judges can be held accountable increases the integrity of the judicial process and helps to protect the judicial powers from those who could encroach on it.

One may argue that the Judiciary is governed by its own rules and procedures and guided by the moral and ethical conduct of individual judges and that they are held accountable through the particular manner by which they operate. For instance judges sit in an open court where their conduct and decisions are subject scrutiny and to Appeals and Judicial Reviews. Their conduct is subject to the law of bias and perceived bias and even media criticisms. The question is do we really believe in these systems to hold individual judges accountable?

The importance of holding individual judges accountable will determine the role of an independent and impartial judiciary. How can one determine the integrity of the judiciary in the absence of a competent and reliable system where the conduct of individual judges come under serious question? Can we say that the judiciary is free from corruption?

Hence the need for the Rule of Law is absolute. In many countries, surveys suggest that the public regard the judiciary as hopelessly corrupt. It is not just a matter of serious misconducts where bribery is suspected but the everyday normal administration processes where court clerks ‘misplace’ or ‘lose files’ or even hold bail bonds until bribes are paid. There are even instances where the Executive has tried to influence an outcome, or interfered in the appointment of judges; or in the assignment of cases. Who assigns cases to judges and what criteria determines the assignment of cases? Are there loopholes where corruption may creep in to undermine the system?

A question posed by one of our clients recently, left us wondering: “How is the Chief Justice of the Supreme Court held accountable when he sits at the pinnacle of the Judiciary? Of course the old adage “no one is above the law” can be just that – colourful words if there is no system in place to ensure everyone is accountable for their actions under the law. Systems cannot practically work because they are meant to be that way, it can lead to erosion of the integrity of the courts and the judiciary, especially if people think that, “Judges are untouchable”.

There are lots of cases where lawyers are brought to account for their behaviour and actions but rarely have we heard of individual judges of the Supreme Court being disciplined for misconduct or some other misdemeanour. Are the judge’s infallible? Of course not. They are mere human beings susceptible to error and selfish desires just like any other human beings. It therefore calls for a system to be put in place that holds them accountable like everybody else under the sun.

For the past few months C4J has received complaints from members of the public, not directed at the judiciary but against the conduct of individual judges.

We have received complaints also from the chiefs and investors against judges from the Supreme Court for what they term, ‘gross misconducts’. As the saying goes, ‘when you see smoke, fire will follow’.

If there are questions and complaints being raised, then we have good reasons to believe and start to think seriously about how everyone could account for their own actions.

The questions and complaints raised are very important questions on the Role of the judiciary because C4J believes that the conduct of individual judges, combined, determines the overall integrity of our judicial system especially in the administration of justice. Most importantly, it raises the need to strengthen current mechanisms, or institute new ones that holds individual judges and lawyers accountable.

As this is our final column we wish all our followers and readers alike a Merry Christmas and a prosperous new year 2022!

- This article first appeared in Daily Post on 24th December 2021

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