Judiciary Independence, from What?

Posted: July 25, 2017 by PaanLuel Wël in Commentary, Contributing Writers, Junub Sudan, law, Opinion Articles, Opinion Writers

By Wol Deng Akech, Lucknow, India

IGAD plus President Kiir, 25 July 2017

IGAD plus President Kiir, 25 July 2017

July 25, 2017 (SSB) — For the last two months, the question regarding the Judiciary independence became a matter of a public debate and interest due to the circumstance of Judiciary strikes demanding the improvement of conditions of work within the Judiciary and relieve of Chief Justice Hon. Justice Chan Reec Madut by the President or to tender his resignation to the President. The same matter reached its high climax when the 13 Justices and Judges were dismissed by President Salva Kiir through an evening Presidential decree (Decree No: 100/2017) which is out cried by the nation and the region as well.

As a member of this learned fraternity, one feels it as necessary to make some attempts in pursuit of a better judicial system in our country.  The purpose of this piece of writing is to test the independence of Judiciary in the Republic of South Sudan in regards to selection, recommendation, appointment dismissal of Justices and Judges.  It will also discuss the basis and legality of the dismissal order, the lack of which will mean powers of the executive without limits is tyrannical in practice or judiciary/Justice with the decision without force/power or independence is powerless.

Thus, we must have an executive which runs its daily activities within the ambit of Constitution and the law and Judiciary which has to administer, presides cases, makes its decisions with force for the establishment of functionary justice delivery institution.  The legal nature of the decree will be discussed at a later stage in this paper and eventually leads to a conclusion with some recommendations, but the first one would like to examine the conditions in which a judiciary is referred, to be independent.

For any society to exist as a democratic society, it is imperative that there must be an independent judiciary, without; the executive will turn into tyranny. The responsibility for any judiciary in a democratic society is to ensure the protection of basic rights which is a very vital and lofty concept or role for the judiciary to play. The aim of any legal system is to achieve justice for the people. The quest for justice is a challenging search like the search for absolute truth. It is difficult to define and state the scope of justice but its main dynamic idea is to achieve and maintain the legitimacy of law and judicial administration of such legitimate law.

The judiciary has no other more responsibilities than the responsibilities given to it by the people by having reposed their faith and trust in it on condition that it shall be independent and impartial. This power is given to the judiciary to make sure that the executive acts within the constitutional arrangements. It is therefore meant to uphold these constitutional arrangements and protect the rights of the citizens in cases the executive encroaches such rights.

Independent of Judiciary simply refers to the fair, free and transparent processes of appointment of Justices and Judges, control, supervision, security of tenure, salary and pension after services, removal/dismissal, suspension and free to pronounce judgements and its administrative decisions without fear or favour but within the ambit of Constitution, intuition and conscience.

This implies that judicial independence means no pressure within the appointment of Justices and Judges and that it shall be in a procedure which is fair, impartial and transparent. Justices and Judges are expected to be in working conditions whereas in they can discharge their roles in accordance with law without prejudices or free from all bias. Executive or legislature should not dictate any part of Judiciary roles or which decisions Justices and Judges should deliver. The appointment should be made in accordance with the law that is fair, transparent and democratic in nature.

The payment of Justices and Judges should be fixed by Law and according to the prevailing conditions as deemed necessary. This judiciary payment should not be at the discretion of the executive or legislature.  In nutshell, the provisions of Article 124 of Transitional Constitution of the Republic of South Sudan, 2011, amended 2015 among others should be met for a judiciary to be referred to as an independent.

Having briefly stated the nature of Judiciary independence, it is now explicit that the independence refers to judiciary is from Executive, legislature, manner of appointment, removal, its administration, freedom of Justices and Judges to make decisions in accordance with Constitution, Law, intuition and conscience, security tenure, salary, retirement and pension after service which shall be determine by Law but not Executive, Legislature or any other state sponsored actors.

With the above nature of Judiciary independence in mind, one would go further by examining the Laws in issue with the Judiciary whether they fall within the above nature. Whether the processes of appointment and dismissal of justices and judges as the two major points of my discussion are fair, free and transparent in their nature and in practice?

  • THE APPOINTMENT OF JUSTICES AND JUDGES.

The Judiciary Council Act, 2008, Judiciary Act, 2008 and Transitional Constitution of the Republic of South Sudan, 2011 amended 2015(TCRSS, 2011) will be examined herein to look into the matter of judiciary independence in the processes of appointment.

Article 133 of the TRCSS, 2011 read together with section 7(1)(C) of Judiciary Council Act, 2008, section 21(1) of the Judiciary Act, 2008 vested the powers to appoint Chief Justice, Deputy Chief Justice, Justices of Supreme Court, President of the Courts of Appeal, Justices of the Courts of Appeal in the President of the Republic through the recommendation by the Judicial Council (a Council whose composition shall be discussed below to illustrate the fair, free and transparent nature of appointment of Justices and Justice).

Furthermore, Article 133(3) states that “’The appointment of the Chief Justice, Deputy Chief Justice, and Justices of the Supreme Court shall be subject to approval by a two-thirds majority of all members of the National Legislative Assembly’’’.

Article 133(1) of the TRCSS, 2011 states that  “”the President of the Republic shall appoint the Chief Justice having regard to competence, integrity, credibility, and impartiality in accordance with this Constitution and the law”. The provision of this article have been in practice for sometime if not since the inception of the Judiciary of South Sudan that the president appoints CJ without prior recommendation as provided in section 21(2) of the Judiciary Act, 2008 which says that “”The Council shall make recommendations to the President with respect to the appointments set forth in subsection (1) above (of the same Act which deals with the appointment of Chief Justice, Deputy Chief Justice, Justices of Supreme Court, Presidents of the Courts of Appeal, Justices of the Courts of Appeal).

This provision relating to the appointment of Chief Justice makes it mandatory for the President to make his appointment based on the recommendation of the Council. In my humble opinion, I would like to submit that in the appointment of Chief Justice, experiences of a person as Justice or Judge or as an outstanding jurist or legal academician, his/her administrative competence and more importantly being the senior most among the Justices of the Supreme Court. It is unwise to let the practice(how CJ Chan Reec Madut was appointed among the most senior Justices of the Supreme Court as CJ) to follow as a custom without suffering the political influence in the process of appointment of Chief Justice.

It is unwise to entrust power in any significant or sensitive profiled Justice position to one person (the President) however high or important his/her office he/she occupies may be. This is to eliminate the political influences on the appointment of Chief Justice and Justices of the Supreme Court.

The Judges of High Courts, County Courts and Payam Courts are appointed subject to the provisions of section 21(3) of Judiciary Act, 2008 and section 7(1) (d) (f) of Judiciary Council Act, 2008 by the President of the Republic on recommendation of the Chief Justice before such recommendation is deliberated, examined and decide upon initially by the Council.

In nutshell, all provisions regarding to the appointment of Chief Justice, Deputy Chief Justice, Justices of Supreme Court, Presidents of the Courts of Appeal, Justices of the Courts of Appeal are with objective interpretation of Article 133(1) are mandatory by the use of phrase “”SHALL”” be recommended by the Council. The question may post itself as what extent does the meaning of recommendation extend?

The word recommendation, in my opinion, is merely adapted in the TRCSS, 2011 amended 2015 and in the two pieces of Legislation to indicate that absolute discretion is not given to anyone, whether be it Judiciary Council, Justice or the President of the Republic. The Council as the body with a direct link with profession circumstances on the ground should have final say in the selection, recommendation, appointment, promotion, transfer, and dismissal of Justices and Judges.

Is the Judiciary Council itself fair, free and transparent in making its decisions particularly on appointment and dismissal?

It is not possible to give an affirmative answer but still one has to seek a helpful answer to this question within the provisions of Judiciary Council Act, 2008., where section 9 states that the Council shall be comprised of Chairperson and eight (8) members as follows:

  1. Chief Justice—Chairperson
  2. Minister of Justice—member
  3. Deputy Chief Justice—member
  4. Minister of finance and National Planning—-member
  5. The Chairperson of Legislation and Legal Affairs in the parliament—member   
  6. The Dean of Faculty of Law, University of Juba—member
  7. The President of South Sudan Bar Association—member
  8. Two Justices of the Supreme Court according to the order of their seniority, members; and
  9. Secretary General of the Council, Ex-offico member, and secretary.

If one has to take interepretivism in which interpretivists hold a view that laws interpretation should be limited to the text and historical background of a particular law or non-interepretivism where they say that interpretation of law requires going beyond the text and historical background of the law  to assert  the meaning of this section, , indeed, there will be no much more doubt than to end with the same interpretation of this section from the two theories and it will ensure purposive interpretation that there is possibility of politicization of appointment and dismissal of Justices and Judges due to the membership of interested politicians in the Council in the persons of Ministers of Finances and Justice if both hail from the same Political Party.

But to leave the structure of the body responsible for selection, recommendation in the appointment and approval of dismissal of Justices and Judges in manner provided in section 8 of the Judiciary Council Act, 2008, with presence or membership of interested politicians who may be working under the influences or command of their political party (ruling party), it will be very hard for us to answer the Roman legal phrase as to “”quis custodiet ipso custodies? (Who is there to watch the watchmen themselves?), since the mechanism for decisions making in the Council is by simple majority as per section 10(4) of the Judiciary Council Act, 2008.

If the provision of section 8 is not amended, the intention to have an independent judiciary with independent Justices and Judges capable of standing up if necessary to reject the encroachment of the executive into its/their roles will probably fail. Therefore, it is necessary for author’s opinion to devise machinery that will ensure selection, recommendation and approval of dismissal of Justices and Judges to be free of political control and appointment of servile Justices and Judges. Also, the restriction on the Dean of Faculty of Law, University of Juba may have external influences.

Thus, I submit that the membership should be drawn sampling the South Africa Judicial Appointing Authority as follows if there is an immediate need for the amendment of the said law:

  1. Chief Justice—–Chairperson;
  2. Deputy Chief Justice…..member
  3. Minister of Justice or to be represented by senior Counsel member;
  4. Two members of Parliament one must be from opposition party
  5. One senior most Justice of Supreme Court ex-officios;
  6. President of South Sudan Bar Association….Member
  7. An outstanding jurist or academician from a Law teaching Faculty member from Public recognized University/College…Member.
  8. Secretary General of the Council, Ex-offico member, and secretary.

This is to leave the matter with the majority to the legal fraternity as it will be a challenge bestowed upon them and thus, they would independently perform better most. If such provision is adopted, it would bring fairness, freedom, transparency in the selection and recommendation and approval of dismissal of Justices and Judges by the Council without fear from political influences. Furthermore, it would underline the clear and independent processes on the functionary of the Judiciary Council, makes the Council more professional, make Justices and Judges to be more accountable and would enhance the prestige of the Council and the Judiciary as well.

Thus, the values of judicial life would be appreciated by everybody if politicians are kept at far or with an equal membership of politicians. The same wording submitted above if adopted, the security for the appointment of a highly qualified, character and good Justices and Judges shall not be in the hands of the appointing authority(The President) but of the Council charged with selection, recommendation for the appointment and approval for the dismissal of Justices and Judges in a professional manner.

Or else the system which exists in other jurisdictions may be adapted such as US (the President appoints Judges to Supreme Court subject to the confirmation by the Senate by a specialized Justice Committee whose membership is comprised of both parties in the Senate).

In India the same scenario like section 9 of the Judiciary Council Act, 2008 with exception of section 9(d)(e) which according to the Indian National Judicial Appointments Commission (NJAC) in which scenario of section(e) of south Sudan Judiciary Council Act, 2008 is filled by the Leader of the Minority party in the Parliament and in case of lack of such position, to be filled by the party with such number after the majority party.

However the Supreme Court of India in its judgment on the manner of appointment of judges in the case of Supreme Court Advocates-on-Record Association Vs. Union of India (2015), AIR SCW 5457 struck down the appointment by Commission and endorsed the long practice of appointment through collegium where the Chief Justice of India and four senior Judges of the Supreme Court run the same functions and functions of our Council.

Such composition is adapted in order to lessen the influences of the ruling party in the process of appointment and dismissal of Justices and Judges. Another instance, which may be seen as an influence to the independence of judiciary is the presence of Vice President in the Council by chairing a meeting on recommendation to the President with respect to the discipline regarding the President of the Supreme Court (the Chief Justice) or the Deputy President (deputy Chief Justice) without the attendance of the person (Justice or Judge) whose disciplinary measure is in question…… section 8(3), this section in one’s opinion contravenes the rules of natural justice as well.

This submission or suggestion is presented herein because judiciary is the only institution where an aggrieved person should seek redress but if the process of appointment and dismissal of Justices and Judges is unfair or controlled by the ruling party, then such Justices and Judges shall be sitting there as the shadow representatives of those influential politicians or the ruling party.

  • INSTANCES OF DISMISSAL OF JUSTICES AND JUDGES

Pertaining to the dismissal of Justices and Judges, Article 134 of TRCSS, 2011 read together with sections 7(d)(f), 8(1)(c),(d)  of Judiciary Council Act, 2008 and sections 50, 54 and 55 of Judiciary Act, 2008 illustrate the instances/procedures to be and  into which Justices and Judges shall be disciplined and dismissed. Article 134 in its plain wordings states that:

  • Discipline of Justices and Judges shall be exercised by the Chief Justice with the approval of the Judicial Service Commission.

This literally means that all justices and judges are subject to a discipline whose board is constituted by the Chief Justice whenever it is deemed necessarily.  The power to constitute Board of Disciplinary is vested in the Chief Justice. The reasons or circumstances in which justices and judges are subject to disciplinary are provided in section 50 of Judiciary Act, 2008 otherwise such other disciplinary which may lead to the constitution of Board of Discipline and subsequently resulted in dismissal of Justice and Judge shall be considered as mala fide disciplinary or dismissal. For the purpose of sub-article, the Council shall be in lieu of Judicial Service Commission.

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.

Reading sections 50, 54, 55 with sub-Article (2) and with the foregoing sub-Article (1) of Article 134, it is mandatorily expressed except in section 55(1) that the findings of the Board of disciplinary shall be presented to the Council for recommendation with power to confirm, dismissed, amend, or return the findings of the Boards of Discipline pertaining to Justices and Judges (sections 7(1) (d) (f), 8(1) (c) (d). Section 55(1) of the Judiciary Act, 2008 uses non-mandatory language in which in my opinion might have been used as a ground for the dismissal of 13 Justices and Judges by the President of the Republic in his presidential order No. 100/2017.

The section states that “”The decision of a Board of Discipline may be confirmed by the Council in respect to Justices of the Supreme Court and of the Court of Appeal, and by the President of the Supreme Court, in respect of the Judges of the High Court, County and Payam Courts; provided that, if the decision is for removal of a Justice of the Supreme Court, shall be as provided for under Article 136(2) of the ICSS””(Article 136(2) of TRCSS, 2011). The use of phrase “may” confers discretionary power in the President and Chief Justice to disregard the roles of the Council but nothing with the provisions relating to the functions and power.

No Article or section validate this discretionary power and as a matter of principle, the supreme law has mandatorily stated that it is within the powers and functions of the Council to exercises its functions and powers as provided in the provision aforementioned. More importantly, no dismissal shall be effective without regards to Article 134(2), sections 49_54 of the Judiciary Act, 2008.

Section 54 which mentions that “the Board of Discipline may impose any of the following penalties: (a) warning; (b) reprimand; (c) deprivation of increment or promotion, for a period, not exceeding one year; (d) cut of pay for a period of one month’s salary; or (e) dismissal”.  In the views of this section with Constitutional provisions as mentioned early, no decision for dismissal of Justices and Judges that shall be arrived to without Board of Discipline constituted whose findings shall be within the scope of the provisions provided in the Constitution and laws after thoroughly and equitable procedures that do not contravene the principle of natural Justices being followed.   

Whether the presidential order No. 100/2017 is within the ambit of the Constitution and the law(s)?

The work of Justices and Judges Needs improved conditions, conducive environment, quality learning, training and self-esteem/good characters. The work of Justices and Judges cannot be equated with money or political interest of the ruling party. Justices and Judges abandon ordinary citizen’s lives just to conduct themselves to what law and justice require of them to be.

One can say that they should have high privileges to compensate the restricted life to administrate justice to the people who are in quest of justice, the judiciary is the only institution where people should repose their trust for restoring the infringed rights and if it is neglected or arbitrarily controlled or perfidies by the executive or any other state sponsored actors, then I have no doubt in my mind to say that justice can be or is at peril or perfidious.

Thus, it’s monetary and improvement of conditions of work demands should be met so that they (Justices and Judges) be in fittest characters of an independent judiciary and become the best legal brains of our country to administer justice.

The demands of the striking Justices and Judges cannot be treated outside the legal rights enshrined in the Constitution and law governing the conditions of services of Justices and Judges in South Sudan.

To answer the question above, one would like to note with great propriety to Constitution and the Laws that  the presidential order dismissing 13 Justices and Judges is in a direct contrast to the public believe that President Kiir assumes more powers and functions which upon exercising such powers and functions, the doctrine of separation of power is seriously violated.

The ambit of the order can be telescoped into board six (6) categories that it (the order) is of:

  1. Illegality;
  2. Irrationality;
  3. Procedural impropriety;
  4. The President with the Chief Justice have abused their powers;
  5. Commission of a breach of rules of natural justice on having dismissed Justices and Judges without Board of Discipline being constituted against the thirteen(13) Justices and Judges or whole majority striking section of Justices and Judges; and
  6. If President upon the unilateral recommendation from Chief Justice made such order based on the wordings of section 54(1), it is likely that they have an error of law for this section is read subordinately with the provisions of the Constitution in Article 134.

Conclusion & some recommendations:

It can be concluded that the Independence of Judiciary ranges from various facts and circumstance, it is for the best interest of justice that the judiciary must be independent of the executive and legislature or other states actors to perform its responsibilities sufficiently. The classical further meaning of judiciary independence includes the fair, free and transparent means being laid down as rules and procedure in selecting, recommending for the appointment and approval of dismissal when having confirmed the same by the Council.

It is to be made further clear that arbitrarily transfer of Justices and Judges will cause substantial influence if Justices and Judges act more sufficiently in faith of judiciary independence or if he/she decides cases which are not in favour of the executive and this, of course, can threaten or undermine the independence of Justices and Judges in making their independent judgements within the circle of law by fearing that if they decide independently so, they may face arbitrating transfer.

The fact that the Council is made of Chief Justice and Ministers and other members who are appointed by executive may be deemed as a direct influence in the decisions of the Council in favour of Executive since Finance and Justice Ministries plus could be obviously held by the members of the ruling party who works under the political influence of their party and President.

Few recommendations which worth to be given herein ranges:

  • Reinstatement of the dismissed Justices and Judges;
  • Relieve or immediate resignation of Hon. CJ Chan Reec Madut since he has become perfidious among his colleagues and the general public;
  • Provision of the demands of Justices and Judges
  • Reconstitution of the composition of the Council
  • Additional power of the Council to oversee the transfer of Justices and Judges

Wol Deng Akech holds a Bachelor of Laws (LL.B) from University of Juba, Advocate and Legal consultant, currently pursues Master of Laws (LL.M), University of Lucknow, India. Co-founder, Screen of Rights, a National Non-governmental Human Rights Organization, Secretary General, Board of Trustees, Integrated Development Organization (IDO) Lives in Lucknow, India. You can reach him via his email: woldeng24261@gmail.com or woldenga@yahoo.com or Tel: +917376270849, +211912507858

The opinion expressed here is solely the view of the writer. The veracity of any claim made is the responsibility of the author, not PaanLuel Wël: South Sudanese Bloggers (SSB) website. If you want to submit an opinion article or news analysis, please email it to paanluel2011@gmail.com. SSB do reserve the right to edit material before publication. Please include your full name, email address and the country you are writing from.

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