The National Assembly is of course an important link in the making of laws. It has a duty to scrutinise proposed legislation and decide on whether to accept or reject it. The President of the Republic is the other important link. He is required to grant his assent to the Bill for it to come into force.
Mr President, the Judiciary does not make laws; it, however, interprets and enforces them. All three State organs - the National Assembly, the Executive Branch, and the Judiciary - are important actors in the making and in the enforcement of our laws. They must work together within the limits of their respective mandates and in a reasonable manner to ensure that the nation’s interests are safeguarded, promoted, and not frustrated. It appears that the rejection of the Bill by the National Assembly is a major setback to our national effort to consolidate democracy and the rule of law based on the independence, efficiency and integrity of the Judiciary.
Mr President, the Bill proclaimed its objects and reasons to be to "make provision for the salaries, allowances, pensions and other entitlements of judicial officers and for connected matters." These are important matters for the independence of the Judiciary and hence for the rule of law. Judicial Independence is dependent much on the security of tenure of judges and on conditions of service which promote judicial integrity. The passing of such a Bill is a requirement imposed by Section 142 of the 1997 Constitution since its adoption.
Mr President, twenty-six years since the adoption of the 1997 Constitution, that requirement is yet to be fulfilled. In the meantime, legislative and other measures have been adopted on the same subject in relation to the two other organs of state, i.e. the National Assembly and the Executive. In fact, in 1998, barely a year after the adoption of the 1997 Constitution, the National Assembly passed a law providing for the pensions and other benefits for the National Assembly members. The Bill for the Judiciary is thus long overdue. Its adoption is a constitutional obligation for the National Assembly.
Mr President, the rejection of the Bill seems to be based on the debate in the Assembly on misunderstandings of its objects and purpose and indeed of its contents. There have been allegations of ‘lucrative' benefits being granted to judicial officers by the Bill. A scrutiny of the Bill reveals that under the Bill, serving judicial officers are not being provided with anything that they do not currently enjoy in terms of salary, allowance, accommodation, transport, security etc. There is no proposal in the Bill to increase these benefits. All the Bill does in this respect is to provide that whenever a National Salary review is carried out a similar one should be done for judicial officers. Fair enough, for they too are part of the public service. Yet our investigations reveal that in recent rounds of salary and allowance increases for the public service, Judges were excluded from such benefits. The benefits were extended to them only belatedly.
Mr President, death gratuity for the spouse or family of a Judicial officer who dies in office is another misunderstanding. Such gratuity is of course payable because there is no entitlement to pension as the judicial officer has died in service. Payment of death gratuity is not exclusively for such judicial officers. It already applies in the rest of the public service. The estate of any civil servant who dies in service is entitled to receive death gratuity. What reason is there for excluding judicial officers? Non-Major change - perhaps the only major change - is with respect to pensions for judicial officers. The Bill proposes retirement on salary for judicial officers who have served ten years or in the case of the Chief Justice five years. This is uniform practice in the Commonwealth and for good reason.
Mr President, judges are precluded by law from engaging in legal practice upon retirement. This is to avoid their decisions being influenced by improper considerations. This prohibition does not apply to any other professionals in the public service. These can indeed engage in private practice both during their public service and obviously upon retirement. Let us remember too that Judges are required to serve much longer than other members of the public service before they can retire, at 65 years minimum and 75 years maximum.
Mr President, the security risk that a judicial officer is exposed to whilst in service does not disappear upon retirement. Leaving them unprotected at that critical stage is to expose them to the vengeful acts of vindictive persons. Nor should we worry that our national budget will be stretched by payment of pensions to large numbers of retired Judges. A combination of the relatively low life expectancy levels, the stresses of judicial office and the high retirement age will realistically ensure, perhaps unfortunately, that there will be any but less than a handful of retired Judges enjoying pension at any given time! The proposed pension benefits also mirror the relevant provisions of the Draft Constitution.
Mr President, the entitlements provided for are in line with Commonwealth practice. Their object is not just for the personal satisfaction of judicial officers. Their abject is to secure the independence and security of tenure of the Judges and improve on integrity. And, as we focus on Gambianisation of the Judiciary as a noble objective, it is designed to attract suitable Gambians to the Bench. The National Assembly, in dismissing the Bill so peremptorily without referring it to committee stage for closer scrutiny, deprived itself of the opportunity to better understand the Bill and clear any misconceptions about it. If we want to continue to have a Judiciary manned by competent independent and experienced Gambians of integrity we must provide the necessary incentives to that end, bearing in mind that such a Judiciary is indispensable for the maintenance of the rule of law and for democracy.
Finally Mr President, the Executive Arm of State should reintroduce the Bill to the National Assembly after due preparation. The National Assembly should then reconsider the Bill objectively and in the Supreme national interest.
Good day!