The suspension of Justice Reuben Madol Arol by the President is contrary to the law and it goes to the heart of judicial independence in South Sudan
By Daniel Juol Nhomngek, Kampala, Uganda
December 1, 2016 (SSB) — Since the suspension of Justice Reuben Madol Arol in 2015, I have been trying to term with the reality as I was still thinking that the President and his advisors would realize that the suspension was done contrary to the Constitution of South Sudan. However, it has now become crystal clear that the President is not taking step to correct the error of administrative decision that was made to suspend Justice Madol.
What is done to Justice Madol is painful and shows the devoid of proper understanding of law by the president and his advisors by the time he issued the order suspending him. As I have pointed out in the above paragraph, Justice Madol was suspended contrary to the law. Why it is contrary to the law as shall be explained later in the last part of this work is because he was exercising his independence as Justice of the Supreme Court.
The independence of judges or justice is protected under the Constitution of South Sudan in Article 125 of THE TRANSITIONAL CONSTITUTION OF THE REPUBLIC OF SOUTH SUDAN, 2011, which provides—
(1) The Judiciary shall be independent of the executive and the legislature. (4) The Judiciary shall be subject to this Constitution and the law which the Judges shall apply impartially and without political interference, fear or favour. (5) The executive and legislative organs at all levels of government shall uphold, promote and respect the independence of the Judiciary. (6) Justices and Judges shall be independent in their judicial work, and shall perform their functions without interference. Their independence shall be guaranteed by this Constitution and the law. (7) Justices and Judges shall uphold this Constitution and the rule of law and shall administer justice without fear or favour; they shall enjoy such immunities as shall be determined by law. (8) Justices and Judges shall not be affected by their judicial decisions.
The interpretation of Article 125 above implies that no person irrespective of the position he or she holds shall indirectly or directly interfere with the function of judiciary in all areas. In fact, this concept of independence of judiciary is rooted in the public policy, the law and it is also recognized worldwide and even by the United Nations Organization.
Thus, the COMMENTARY ON THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT SEPTEMBER 2007 by the United Nations Office on Drugs and Crime provides that –Judicial independence is not a privilege or prerogative of the individual judge. It is the responsibility imposed on each judge to enable him or her to adjudicate a dispute honestly and impartially on the basis of the law and the evidence, without external pressure or influence and without fear of interference from anyone.
Hence, as can be understood from the above paragraph, the core of the principle of judicial independence is the complete liberty of the judge to hear and decide the cases that come before the court; no outsider whether the president or the government, pressure group, individual or even another judge – should interfere, or attempt to interfere, with the way in which a judge conducts a case and makes a decision.
In that respect, the Basic Principles on the Independence of the Judiciary (Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985), further provides that the independence of the judiciary shall be guaranteed by the State as enshrined in the Constitution or the law of the country.
Thus, it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. In that regard, the judiciary must free to decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
The same principles of independence as referred to above provides that the judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law. For that purpose, the law provides that it is inappropriate or unwarranted to interfere with the judicial process and no one is allowed to interfere with the judicial decision made by a competent court except in cases where there is a need for judicial review or to mitigate or commutation by competent authorities of sentences imposed by the judiciary, in accordance with the law.
The implication of judicial independence in any country is that the judiciary is entitled and required to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected. As it has been explained, in order to ensure independence of judiciary, South Sudan has the duty to provide adequate resources to enable the judiciary to properly perform its functions.
On the point of adequate resources, Article 125 (2), (3) and (9) of the Constitution of South Sudan, 2011 provides that the budget of the Judiciary, after its approval by the National Judicial Service Commission and assent of the President, shall be charged on the consolidated fund and it shall have the financial independence in the management thereof.
In addition, the Constitution provides that judiciary shall be self-accounting and its finances shall be subject to public audit. Hence, the salaries, allowances, privileges, post-service benefits, tenure and other conditions and terms of service of judicial officers or other persons exercising judicial powers shall be regulated by law.
So the question is why do we need judicial independence and immunity? The main reason is that when the judiciary is independence, it has integrity and people’s confidence in law is maintained. For that reason, a judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy and the rule of law.
As seen in the above paragraph, the overall reason for requiring different countries to protect judicial independence is to ensure that the rule of law and democracy is upheld. Consequently, a competent, independent and impartial judiciary is likewise essential if the courts are to fulfil their role in upholding constitutionalism and the rule of law.
In addition, even when all other protections fail, judiciary provides a bulwark to the public against any encroachments on rights and freedoms under the law. The observations by the United Nations office on crime and drugs apply domestically in the context of each nation State such as South Sudan on the rule of law and democracy are important as shall be explained in the next paragraph below.
Rule of law and democracy as mentioned above is are important in the protection of human rights as they are the basis of constitutionalism. Because of that, the COMMENTARY ON THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT cited above provides in paragraph 10 that the idea of constitutionalism involves the proposition that the exercise of governmental power shall be bounded by rules, rules prescribing the procedure according to which legislative and executive acts are to be performed and delimiting their permissible content.
Upholding the idea of Constitutionalism means that the Constitutionalism becomes a living reality to the extent that its rules curb the arbitrariness of discretion and are in fact observed by the wielders of political power, and to the extent that within the forbidden zones upon which authority may not trespass, which means that there shall be significant room for the enjoyment of individual liberty.
The purpose of law is to protect human rights in different forms and the protection is carried out through strong judiciary which is independent. In different countries, codes are enacted to protect judicial independence because where judiciary fails to protect human rights, the country descends into chaos and anarchies as seen in South Sudan. This is why almost all countries of the world jealously protect the independence of judiciary.
As shown below, different countries have different codes of judicial conduct that govern conduct of judicial officers and also intended to protect the independence of judiciary as they provide strict rules on the removal of judicial officers. Hence, for the sake of our discussion and to understand more about code of judicial conduct and protection of judges or justices under the law worldwide, the following National Codes are listed. They are listed so that if the readers are interested in knowing more about judicial conduct then they have to read them. It is, therefore, important for the readers to read if they wish the following selected Codes from some countries so that they able to understand the protection given to judges and justices in different countries.
The Codes include—The Code of Judicial Conduct adopted by the House of Delegates of the American Bar Association, August 1972; Declaration of Principles of Judicial Independence issued by the Chief Justices of the Australian States and Territories, April 1997; Code of Conduct for the Judges of the Supreme Court of Bangladesh, prescribed by the Supreme Judicial Council in the exercise of power under Article 96(4)(a) of the Constitution of the People’s Republic of Bangladesh, May 2000.
Also, Ethical Principles for Judges drafted with the cooperation of the Canadian Judges Conference and endorsed by the Canadian Judicial Council, 1998. The Idaho Code of Judicial Conduct 1976; Restatement of Values of Judicial Life adopted by the Chief Justices Conference of India, 1999; the Iowa Code of Judicial Conduct; Code of Conduct for Judicial Officers of Kenya, July 1999. i. The Judges’ Code of Ethics of Malaysia, prescribed by the Yang di-Pertuan Agong on the recommendation of the Chief Justice, the President of the Court of Appeal and the Chief Judges of the High Courts, in the exercise of powers conferred by Article 125(3A) of the Federal Constitution of Malaysia, 1994.
The Code of Conduct for Magistrates in Namibia; Rules Governing Judicial Conduct, New York State, USA; Code of Conduct for Judicial Officers of the Federal Republic of Nigeria. .
Code of Conduct to be observed by Judges of the Supreme Court and of the High Courts of Pakistan.; the Code of Judicial Conduct of the Philippines, September 1989; the Canons of Judicial Ethics of the Philippines, proposed by the Philippines Bar Association, approved by the Judges of First Instance of Manila, and adopted for the guidance of and observance by the judges under the administrative supervision of the Supreme Court, including municipal judges and city judges.
The Texas Code of Judicial Conduct; Code of Conduct for Judges, Magistrates and Other Judicial Officers of Uganda, adopted by the Judges of the Supreme Court and the High Court, July 1989; The Code of Conduct of the Judicial Conference of the United States. The Canons of Judicial Conduct for the Commonwealth of Virginia, adopted and promulgated by the Supreme Court of Virginia, 1998; The Code of Judicial Conduct adopted by the Supreme Court of the State of Washington USA, October 1995.
The presence of the above Codes of Judicial Conduct in different jurisdiction implies two reasons—the first reason is that judges are important to the country as they help in the maintenance of the rule of law and the second reason is that the procedure followed in their removal differs from other political appointees. For this reason Article 101 of the Transitional Constitution of South Sudan, 2011 that gives president powers to remove governors and other government officials does not apply to the judges or justices in South Sudan for a simple reason.
The reason is that the procedure for the removal of judges and justices is provided for in the Constitution under Article 135 of the Transitional Constitution, 2011. Article 135 provides that— (1) Discipline of Justices and Judges shall be exercised by the Chief Justice with the approval of the Judicial Service Commission. (2) Justices and Judges may be removed by an order of the President for gross misconduct, incompetence and incapacity and upon the recommendation of the National Judicial Service Commission.
Though Article 135 of Transitional Constitution of South Sudan, 2011 does not provide elaborate procedures followed in the process of removal of judges and justices like Article 144 of the Constitution of the Republic of Uganda, 1995, the proper procedure in removal of justices in South Sudan is for the National Judicial Service Commission to institute disciplinary proceeding against the judge or justice accused of gross misconduct as provided for under Article 135 (2) of the Transitional Constitution.
The disciplinary proceeding must be preceded by the investigation and in the process of investigation justice or a judge under investigation can be suspended but such suspension should not be done before the investigation begins. In addition, the investigation must observe the Common law principles of natural justice, which involves inter alia fair hearing.
After that if the findings are in favour of the accused justice or judge, and then, he or she must be reinstated and compensated if his or her salaries were not paid in full. However, where the findings are to the effect that a judge or justice should be removed on the grounds of gross misconduct, incompetence and incapacity as provided under Article 135 (2) of the Transitional Constitution then at that point the president shall remove the judge.
As seen in the foregoing discussion it appears that the president exercised his powers arbitrarily and illegally to remove Justice Madol Arol because Article101 of the Transitional Constitution that gives the president powers to remove public officials does not apply to judges. This is because the removal of judges must be recommended by the National Judicial Service Commission of South Sudan as provided for under Article 133 of the Transitional Constitution.
In addition, article 101 of the Constitution of South Sudan does not provide for the removal of judges and justices and since their removal is provided for under Article 135, the President does not have jurisdiction to remove or suspend judges or justices without the recommendation from the National Judicial Service Commission of South Sudan.
Lastly but not least, indefinite suspension is not allowed under the law of South Sudan. Thus, Article 19 of the Transitional Constitution, 2011 on fair trial and fair hearing provides that a person accused of any crime must be given an opportunity to be tried as soon as possible.
It is, therefore, important that if Justice Madol was accused of any crime or misconduct that warranted his suspension, then, he should have been informed immediately without leaving him to relinquish in stress and psychological torture.
The president must know that Justice Madol is an elder person and if anything happens to him today while he is under suspension the government must account for his suffering because the way he is being treated is unfair and unacceptable.
There is a need for the government to expedite the investigation that Justice Madol knows his fate earlier which is better than being left in psychological torture to suffer from high blood pressure and heart attack caused by a lot depression. This is because judges value their and if a judge is suspended without any reason he or she can suffer. For that reason, I believe Justice Madol is suffering in silence, which is a worse psychological torture.
In conclusion and based on the foregoing analysis of the legality of the action of the president to suspend justice Madol without any reason, the suspension was done contrary to the provisions of the Transitional Constitution of South Sudan 2011. As I have heard the reason for his suspension that he was suspended because he shows dissenting opinion over legality of the creation of 28 States.
If that was the case, then his suspension was done contrary to the provision of the Constitution on the independence of judiciary as explained above in this article. It further implies that he was being penalized for executing his judicial opinion independent contrary to Article 125 (8) which provides that Justices and Judges shall not be affected by their judicial decisions.
In removing Justice Madol on account of having dissented during the judicial proceeding, such removal was done in bad faith and contrary to the law as stated under Article 125 (8) of the Transition Constitution above. Article 125 (8) is to the effect that justices and judges should not be penalized for any decision they make irrespective of whose favour they make it.
In short, the suspension of Justice Reuben Madol Arol by the president without any legitimate ground was done contrary to the law and it goes to the heart of judicial independence in South Sudan.
NB//: the Author is a South Sudanese lawyer residing in Kampala Uganda and he can be reached through: +256783579256 or firstname.lastname@example.org
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