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The Separation of Powers and Judicial Independence under 1997 Constitution

Apr 6, 2009, 8:54 AM

The Gambia is a  constitutional democracy and like most other constitutional democracies it is perched on the doctrine of the separation of powers and the rule of law. The two concepts are intertwined: the true separation of powers is achieved only through law. The distinctive and separate role of the Legislature, Executive and Judicature are clearly spelt out in the Constitution: The Executive initiates, develops and implements policies and legislation, the Legislature passes laws and has an oversight role over the Executive, and the Judiciary upholds the Constitution and the law.

The Commonwealth Latimer House Principles recognise that the three branches of government "are the guarantors in their respective spheres of the rule of law, the promotion and protection of fundamental human rights and the entrenchment of good governance based on the highest standards of honesty, probity and accountability." Although the doctrine of the separation of powers is recognised as a fundamental constitutional principle of a democratic state based on the rule of law, it is trite to say that no universal model for the separation of powers exists.

It is widely acknowledged that the separation of powers is intended as a means of controlling government by separating or diffusing power, but it is not strict; in reality it embodies a system of checks and balances designed to prevent an over concentration of power in any one arm of government, it anticipates the necessary or unavoidable intrusion of one branch on the terrain of another, this engenders interaction, but does so in a way which avoids diffusing power so completely that government is unable to take timely measures in the public interest.

The 1997 Constitution, in other words, confirms that in the Gambia, as in other well-known constitutional designs, a bright line of separation of functions between the three branches of government is not intendment. Having said that it must also be noted that in order to exercise judicial power (as one of the three powers in a democratic government) this power needs to be vested in a mechanism independent of the Legislative and Executive powers of the government with adequate guarantees, to insulate it from political and other influences.

It is important therefore to understand what judicial independence is and what is required to preserve that independence. At the outset, it must be noted that there is no "agreed" definition of judicial independence and it is not the intention of this piece to formulate such a definition. Rather, as has become the norm amongst Superior Courts in Common Law jurisdictions over the past two decades, judicial independence are measured according to what is referred to as the "essential conditions" or "core values" of judicial independence.

The views of the Canadian Supreme Court in the Valente judgment, a leading case, are worth noting. In that decision three essential conditions of independence were identified that could be applied independently and were capable of achievement by a variety of legislative schemes or formulas. Those three essential conditions of judicial independence are: 1) Security of Tenure, 2) Financial Security and 3) Administrative Independence. Security of tenure is understood to embody as an essential element, the requirement that the decision maker be removable only for just cause, "secure against interference by the executive or other appointing authority."

Financial Security was described in Valente decision as meaning security of salary or other remuneration, and, where appropriate, security of pension and "the essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence." The recently enacted Judges Act of the Gambia is a step in the right direction of securing Financial Security for the judiciary.

The third essential condition of judicial independence identified in Valente decision was "institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function." In this regard, the Court held that judicial control over matters such as the assignment of judges, sittings of the court and court lists as well as related matters of allocation of courtrooms and direction of the administrative staff engaged in carrying out these functions, has generally been considered the essential or minimum requirements for institutional "collective" independence. The court held further that although an increased measure of administrative autonomy or independence that is being recommended for the courts, or some degree of it, is highly desirable, it cannot be regarded as essential for institutional independence. The essentials of institutional independence, which may be reasonably perceived as sufficient were summed up by the court as "judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function." 

Institutional independence involved independence in the relationship between the courts and other arms of government. In assessing this relationship, we must consider whether the court or tribunal from the objective standpoint of a reasonable and informed person will be perceived as enjoying the essential conditions of independence. The appearance or perception of independence plays an important role in evaluating whether courts are sufficiently independent. The perception has to be one that is based on a balanced view of all the material information. The question is how things appeared to the well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical and suspicious person. Bearing in mind the homogeneity of Gambian society this cautionary injunction is of particular importance in assessing institutional independence. The well-informed, thoughtful and objective observer has to be sensitive to the country's social realities, in touch with its evolving patterns of constitutional development, and guided by the Constitution, its values and the differentiation made between different levels of state organs and agencies. Taking the above criteria as a point of departure the reader must come to his or her conclusion about the institutional independence of the Gambian Judicature.

This writer posits that any discussion in reference to judicial independence must therefore start by determining whether, in our judicial system, the three essential conditions for judicial independence are present, namely security of tenure, financial security and institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function. There is no question that as far as security of tenure and financial security is concerned, our Constitution and legislation properly gives effect to these principles of judicial independence. However, there has been some controversy over all three. That controversy has arisen from some of the pronouncements made by the Executive regarding the administration of the courts and frequent sackings of judicial officials.

In some countries, the whole administration of the courts is given to the courts that include the appointment of court staff, the determination and implementation of
Human Resource policies, security, transport, interpretation, transcription services, registry, libraries etc. In other countries, only those matters of administration that bear directly on the exercise of their judicial functions are left to the judiciary to decide. These matters include the allocation of cases, judges, hearings, workload, court rolls etc. There is no universal model there are various approaches to court administration. The critical issue is to ensure both perceptually and in substance that the administration of the courts by the Executive does not impinge on the independent and impartial dispensation of justice. It is a matter of proper allocation and appropriate checks and balances.

These three principal criteria of judicial independence however fail to include a crucial role player in securing the independence of the judiciary namely the judiciary itself that it was also the responsibility of judges themselves to "protect, nurture and enhance the independence and the integrity of the judiciary. The independence of the judiciary and the legitimacy of its claim to credibility and esteem must in the last instance rest on the integrity and the judicial temper of Judges, the intellectual and emotional equipment they bring to bear upon the process of adjudication, the personal qualities of character they project, and the parameters they seek to identify on the exercise of judicial power. Judicial power is potentially no more immune from vulnerability to abuse than Legislative or Executive power but the difference is this: the abuse of Legislative or Executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse of judicial power.

It is therefore crucial for all judges to remain vigilantly alive to the truth that the real depth of judicial responsibility matches the potentially awesome breath of judicial power. Judicial responsibility becomes all the more onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their own wrongs. In a constitutional democracy such as ours, in which the Constitution is the supreme law of the land, substantial power has been given to the judiciary to uphold the Constitution. In exercising such powers, obedience to the doctrine of the separation of powers requires that the judiciary, in its comments about the other arms of the Government, show respect and courtesy, in the same way that these other arms are obliged to show respect for and courtesy to the judiciary and one another. They should avoid gratuitous reflections on the integrity of one another.

Our Constitution prescribes the character and calibre of, and the environment within which the judicial officer must perform this delicate role. Judicial officers must be fit and proper persons. The requirement of "fit and proper person" connotes persons of high competence and integrity. The integrity and ethical standards of the judiciary lies at the heart of a fair and impartial judicial system envisaged by the Constitution. The ultimate power of the courts must therefore rest on the esteem in which the judiciary is held within the psyche and soul of the nation and in the confidence, it enjoys within the hearts and the minds of potential litigants in search of justice. No public figure anywhere, however otherwise popular, could afford to be seen to defy the order of a court, which enjoys, within the nation, a perception of independence and integrity.

It is therefore submitted that a weak, unprincipled judiciary is powerless to stem a tide of human rights violations and to keep state power in check. It is accordingly in everybody's interest that the courts should be enabled and protected so that they can do their work properly and impartially, without fear, favour or prejudice in protecting these rights. At the same time, we should demand the highest ethical standards and the utmost competence and integrity among members of the judiciary. The courts are not just the arbiters of fundamental rights they are themselves bound to them. This is not just a duty to apply the law but also a duty to comply with it, which all persons and agents of the State share. This brings us to the issue of judicial misconduct. The core principle of security of tenure ensures that a judge can only be removed for gross incompetence or misconduct and only after the Judicial Service Commission (JSC) has made such a finding. But what constitutes misconduct and gross misconduct? What standards are expected of the judiciary? In addition, who should do the disciplining of judges in matters that do not justify impeachment? These are difficult questions. Put more abstractly what is the relationship between accountability and independence? If there is accountability, who are judges accountable to? The proposed answer to these questions, which I believe is the proper balance between accountability and independence, is a conduct committee of the JSC made up of judges and a code of conduct against which individual judge's conduct can be measured. The relevance of the emphasis on these fundamental rights and the values they contain lies in the fact that the judiciary itself must be guided by the ethos and values that underlie an open and democratic society. The Constitution enjoins the three organs of State to work together to serve the public interest or the interest of a democratic and open society. Therefore, the supremacy of the Constitution and the rule of law form an important yardstick that guides the Court in executing its judicial function. This yardstick ensures that courts cautiously exercise their judicial power.

At the heart of the principle of separation of powers is a commitment to enhance democracy, increase accountability, and protect, promote and fulfill our fundamental human rights, which are the cornerstone of our democracy. The common thread binding the functionaries of the three organs of State is the commitment to respect, protect and uphold the Constitution which is the pledge every public office-bearer must make before he or she assume public office. It is common cause that constitutional democracies across the globe are characterised by the inherent tension that exists between the three arms of government as they jostle for pre- eminence. There is no common approach through which different countries have organised and managed the complex and at times contentious relationship between the three arms of government. Suffice it to say that different democracies have drawn the boundaries at different places depending on their constitutional framework and socio-political context while maintaining the universally acknowledged core principles of judicial independence as articulated in the United Nations Basic Principles on the independence of the judiciary. The manner and approach by which the three organs of state manage their relationship is paramount. The Constitution and the interest of society are the primary guiding factors to be taken into account in the process of easing and normalising these tensions.

The challenges presented by democratic and accountable governance sketch out in 1997 Constitution and the delicate balancing this requires is particularly important in the Gambia, where the Executive has a duty to implement policies that are necessary to transform a society, which is still mired in, inequality, ignorance and poverty.

Almami Fanding Taal is Legal Practitioner with a special interest in Human Rights, Media Laws, and Good Governance & Institutional Development.