It’s all about judicial accountability

In the absence of any responsibility of the judiciary to anyone but itself, our judges and magistrates risk starting to consider themselves as demi-gods.

The judiciary is plagued with numerous problems, and the lack of any kind of scheme of accountability has led to the decay in the system. The common man has long been losing all confidence in the judicial system.

The backlogs and delays in cases only reinforce this loss of faith. Adjournments are given easily, and witnesses wait for hours to have evidence recorded. A few members of the judiciary conduct the proceedings according to their whims and fancies. The number of days and the number of hours that they work are just not enough to deal with the problem.

On more than one occasion, I have publicly pleaded for a judicial ombudsman.

It seems that now the government is going in that direction, only with a different nomenclature, as it prefers to call this new institution the Standards Commissioner for the Judiciary.

As important as the independence of the judiciary is, it is also a fundamental principle that every institution must be accountable to an authority which is independent of that institution.

But when it comes to the judiciary itself, a different set of rules and a different set of standards are followed. The judiciary has become a judge in its cause, and transparency is conspicuous by its absence.

Effective access to justice can be seen as the most basic requirement, the most basic human right, of a system like ours, which purports to guarantee legal rights. The judiciary is in a very powerful position in our democracy and demands supreme confidence from the people. Individuals, when harassed and threatened by the politics that engulf most governments, turn with great hope to the judiciary.

But are our judges infallible? Aren’t they humans? And isn’t to err human? They are but the products of the society; they suffer from the same failings, frailties and shortcomings, from the same bias and prejudice and the same ills and vices. Then who will judge the judges?

The question, ‘Who are the judges accountable to?’ is very valid and justifiable. The judiciary is not accountable to the people, as the people do not elect the members of the judiciary. It is neither responsible to the other bodies of the government due to an ever-present hue and cry about the separation of powers and independence.

But are independence and accountability antitheses of each other?

Judicial independence is not an end in itself. Both judicial independence and accountability are instrumental values.

The function of independence is to let the judiciary decide according to the rule of law and not be influenced by any other agency of the government or any private interests or the interests of any individual.

Trust in the administration of justice depends not only on the merits of the verdicts rendered in the courtroom but also on the probity and the appearance of probity among those who decree them. A litigant may not feel happy about losing a case, but no one should walk out of a proceeding reasonably believing that the process was tainted by a judicial officer who was biased, improperly influenced or otherwise unfair.

So, we can safely conclude that if the judges or magistrates start deciding cases arbitrarily, become corrupt, ignore the rule of law and are influenced by politics or the appeal of private gain, then their judicial independence is hampered.

Hence, the need for a supervisory body and a judicial watchdog.

That is why judicial independence has to be understood in the context of its purpose.

Judicial accountability and judicial independence are complementary to each other.

The judicial branch may be the most subtle and least understood of all state powers, but its independence, integrity and impartiality are at the heart of the due administration of justice that is the firmest pillar of good government.

While judges’ and magistrates’ doctrinal mistakes are corrected by the well-established appellate court system, there are fewer protections against their misconduct on and off the bench. That’s where the standards commissioner for the judiciary comes in.

It is not necessarily uncommon in Malta for judges and magistrates to engage in activities that compromise or appear to compromise their judicial independence. While the concept of an independent judiciary came well before public insistence on the principle of an accountable judiciary, it would be wrong to conclude that the latter is a departure from the former. Contrary to what may be a common complaint among certain legal opinionists and NGOs like Repubblika, the proposed judiciary commissioner, far from inhibiting judicial independence, will protect it.

Judicial activism creates a certain demand for accountability from the executive and the legislators, which we cannot shrug off by relying on judicial independence, particularly where the judiciary is entrusted with a creative as opposed to a purely protective role.

No public institution can survive in a democratic setup unless it retains public confidence. The judiciary is no exception to it. The garden of the judiciary is a delicate structure; it needs care and constant vigilance. Any amount of negligence can cause irreparable damage to the whole institution.

An independent judicial oversight authority, as will be the commissioner, might necessitate disciplinary action ranging from removal to formal reprimands to achieve accountability.

It’s a timely proposal, as the courts are truly at the edge of a precipice.