By Chief Afe Babalola SAN,
Last week I discussed the need to ensure that Judges are paid adequately. This is with a view to preventing a situation in which they would be tempted or compelled to look to others for their means of sustenance.
Such a development will not only prevent corruption, it will also ensure that brilliant lawyers are not discouraged from taking up judicial appointments.
The judiciary in Nigeria still lacks autonomy in the real sense of the word despite attempts made in recent times to give it a semblance of such autonomy. At the moment, the executive arm of government at the federal and state levels still do not see the judiciary as a totally separate and independent arm of government.
To bring home this point, I wish to refer to the situation in some other countries which have rightly placed emphasis on judicial autonomy.
Canada has a level of judicial independence entrenched in its Constitution, awarding superior court justices various guarantees to independence under sections 96 to 100 of the Constitution Act 1867.
These include rights to tenure (although the Constitution has since been amended to introduce mandatory retirement at age 75) and the right to a salary determined by the Parliament of Canada (as opposed to the executive). In 1982 a measure of judicial independence was extended to inferior courts specialising in criminal law (but not civil law) by section 11 of the Canadian Charter of Rights and Freedoms, although in the 1986 case Valente v. The Queen it was found these rights are limited. They do, however, involve tenure, financial security and some administrative control.
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The year 1997 saw a major shift towards judicial independence as the Supreme Court of Canada in the Provincial Judges Reference found an unwritten constitutional norm guaranteeing judicial independence to all judges, including civil law inferior court judges.
The unwritten norm is said to be implied by the preamble to the Constitution Act 1867. Consequently, judicial compensation committees such as the Judicial Compensation and Benefits Commission now recommend judicial salaries in Canada.
There are two types of judicial independence: institutional independence and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches.
Decisional independence is the idea that judges should be able to decide cases solely based on the law and facts, without letting the media, politics or other concerns sway their decisions, and without fearing penalty in their careers for their decisions.
In Hong Kong, independence of the judiciary has been the tradition since the territory became a British crown colony in 1842. After the 1997 transfer of sovereignty of Hong Kong to the People’s Republic of China pursuant to the Sino-British Joint Declaration, an international treaty registered with the United Nations, independence of the judiciary, along with continuation of English common law, has been enshrined in the territory’s constitutional document, the Basic Law.
Under the unwritten British Constitution, there are two important conventions which help to preserve judicial independence. The first is that Parliament does not comment on the cases which are before the court. The second is the principle of parliamentary privilege: That Members of Parliament are protected from prosecution in certain circumstances by the courts.
In modern times, the independence of the judiciary is guaranteed by the Constitutional Reform Act 2005, s.3. In order to try to promote the independence of the judiciary, the selection process is designed to minimise political interference. The process focuses on senior members of the judiciary rather than on politicians. Part 2 of the Tribunals, Courts and Enforcement Act 2007 aims to increase diversity among the judiciary.
The pay of judges is determined by an independent pay review body. It will make recommendations to the government having taken evidence from a variety of sources. The government accepts these recommendations and will traditionally implement them fully. As long as judges hold their positions in “good order”, they remain in post until they wish to retire or until they reach the mandatory retirement age of 70.
Article III of the United States Constitution establishes the federal courts as part of the Federal Government. The Constitution provides that federal judges, including judges of the Supreme Court of the United States, are appointed by the President “by and with the advice and consent of the Senate”.
Once appointed, federal judges: …both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.
Federal judges vacate office only upon death, resignation, or impeachment and removal from office by Congress; only 13 federal judges have ever been impeached. The President is free to appoint any person to the federal bench, yet typically he consults with the American Bar Association whose Standing Committee on the Federal Judiciary rates each nominee “Well Qualified”, “Qualified” or “Not Qualified”.
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I know that in Nigeria there have been calls for increased consultations with the Bar before appointments are made to the Bench.
To guarantee civil liberties it is important that independence of the judiciary should continue to be accorded importance by all who are saddled by statute or the Constitution with important tasks relating to the judiciary.
However where the enabling laws do not or are found to be incapable of fully ensuring the independence of the judiciary or where the implementation of such laws are themselves obstacles in the achievement of this objective, efforts must be made to bring about a change in the law.