Journal of the Commonwealth Magistrates’

and Judges’ Association

Vol 16 no. 2 December 2005

COMMONWEALTH MAGISTRATES’ AND JUDGES’ ASSOCIATIONEstablished in 1970

Registered Charity (LTK) No. 800367 Company Limited by Guarantee Reg. No. 1942930

PATRONHer Majesty the Queen

PRESIDENTLord Hope of Craighead, PC (Scotland)

EXECUTIVE VICE-PRESIDENTMr Michael Lambert FCA

HON. TREASURERMr Paul G Norton JP

IMMEDIATE PAST PRESIDENTJustice Richard Banda (Malawi)

LIFE VICE PRESIDENTSHis Hon. Magistrate David ArmatiThe Hon. Justice Kipling Douglas

The Hon Judge Sandra Oxner

CARIBBEAN ATLANTIC & MEDITERRANEANREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENT Mrs Clover Thompson -Gordon JP (Jamaica) Sheriff Douglas Allan (Scotland) COUNCIL MEMBERS COUNCIL MEMBERS Mr Kwasi Bekoe (Trinidad and Tobago) Mrs Jean Hanson Hills JP (England & Wales)(Vacancy) Justice John Jennings (Canada)

EAST CENTRAL AND SOUTHERN AFRICA PACIFICREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTMr Wilson Masulu Musene (Uganda) Mr Samiuela Palu (Tonga)COUNCIL MEMBERS COUNCIL MEMBERSJudge Gertrude Chawatama (Zambia) Deputy Chief Magistrate Michael Hill (Australia)Mr Joe Raulinga (South Africa) The Hon. Robin Millhouse (Kiribati)

INDIAN OCEAN WEST AFRICAREGIONAL VICE PRESIDENT REGIONAL VICE PRESIDENTJustice Dato’ Siti Norma Yaakob (Malaysia) The Hon Mr Justice Mensah Quaye (Ghana)COUNCIL MEMBERS COUNCIL MEMBERSDr Booshan Domah (Mauritius) Magistrate Paul Evande Mwambo (Cameroon)(Vacancy) His Worship Dan Ogo (Nigeria)

CO-OPTED COUNCIL MEMBERSJustice Petros Artemis (Cyprus)

Justice Claudia Latilawa Taylor (Sierra Leone)Justice MCC Mkandawire (Malawi)

SECRETARY GENERAL: Dr Karen BrewerAuditors: Alliotts

EDITOR OF COMMONWEALTH JUDICIAL JOURNALProfessor David McClean

EDITORIAL BOARDDr Peter Slinn (Chairperson) Judge David PearlMr Eric Crowther Mrs Nicky PadfieldMr Geoffrey Care Ms Betty Mould IddrisuMr Christopher Rogers

CMJA, Uganda House, 58-59 Trafalgar Square, London WC2N 5DX, U-K. Tel: +44 (0)207 976 1007Fax: +44 (0)207 976 2394 Email: info@cmja.org website: www.cmja.org

This journal is generously funded by The Commonwealth Foundation

COMMONWEALTHJUDICIALJOURNAL

CONTENTS

EDITORIAL 2

Obituary: Solon Nikitas 3

James Allan Human Rights – Can We Afford to LeaveThem to the Judges? 4

Carl Barr Delays in the Administration of Justice 11

Karen Brewer Mechanisms for Ethical Conduct in theAdministration of Justice 18

Richard Nzerem Sustaining and Enhancing the DemocraticDividend in Commonwealth Africa 24

HH Judge Keith Hollis Continuing Judicial Education and JudicialReform 30

Lord Justice Brooke Computers for the English Judiciary 34

Samiu Palu Tonga: the Strike and the Judiciary 36

LAW REPORTS

Travers v National Director of Public Prosecutions 38

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Journal of theCommonwealth Magistrates’ andJudges’ Association

Vol 16 No 2 December 2005

It was a privilege to read recently an addressgiven by the Chief Justice of oneCommonwealth country at the opening of thelegal year. Predictable enough – though surelywell deserved – was his tribute to the judges for‘their fierce independence, unassailableintegrity and above all unswerving commit-ment to justice for all’. Less predictable werehis sobering descriptions of society in hiscountry. He spoke of senseless killings, well-targeted kidnappings, rapes and robberies, andof the insidious damage done to the minds ofthe people over the years. What was onceregarded as abhorrent and unacceptable hadbecome commonplace, part of daily life. Nowonder there was a widespread feeling ofdesperation and despair.

Not every Chief Justice would see his or hersociety in those terms, but there is a sense inwhich judges and magistrates are in a front linewith a painfully clear view of the troubles intheir nations and communities. In every part ofthe Commonwealth, judges need to cling to thehigh ideals of their judicial calling and bevigilant in protecting their independence: inCanada, a new Judges’ Handbook addressesjudicial independence and judicial governancein the provincial courts. Equally, judges every-where must recognise the realities of thesocieties in which they work.

This issue of the Journal reflects that mix ofhigh ideals and realism. There are a number ofreferences to the Latimer House Guidelines onthe relationship between the three branches ofGovernment. Richard Nzerem sets out some ofthe background with especial reference toCommonwealth Africa. The Guidelines werethe subject of a conference in Nairobi lastApril, and Karen Brewer’s paper on judicialethics was written for that occasion.

James Allan asked his audience at theCommonwealth Law Conference whether wecould afford to leave human rights to thejudges. He argues, in a lively paper, for anegative answer. His assertion that Australia isone of the most desirable places in which tolive will be applauded by those who know andlove that country, but it is more surprising todiscover that he attributes that desirability tothe absence of a bill of rights. There is no

denying that bills of rights add to judicialpower. They also leave the judges exposed tocriticism, sometimes unfair and politicallymotivated, as they determine highly controver-sial issues.

Criticism of the courts system for its delays isoften entirely fair. Carl Barr analyses the causesof delay, and his diagnosis is relevant to theconditions in too many Commonwealthmember countries. He argues that the colonialinheritance gave not only the blessings of thecommon law but also a court system withbuilt-in weaknesses, still to be found wherereforms have not been introduced.

Four shorter items complete what we hope is afull and very interesting issue. Keith Holliswrites on judicial education, perceiving somechanges in the way the courts are used. We canoften learn from others’ successes and failures;in that spirit we print Lord Justice Brooke’saccount of how computers were introduced tothe lives of judges (outside the court room) inEngland. The affairs of Tonga may attract littleattention in the world’s press, but readers willbe interested in Samiu Palu’s account of therecent national strike and the stance of theJudiciary. Finally, a note is included of adecision in South Africa on the judicialindependence enjoyed by magistrates and itsimplications.

This editorial would not be complete withoutmention of two significant meetings. One wasthe triennial meeting of Commonwealth LawMinisters, held (like the CMJA’s conferenceearlier in the year) in Accra. The range ofissues discussed was notable: juvenile justice,law reform agencies, the regulation of broad-casting, gender issues and human rights, thelaw of the sea, improved co-operation indealing with transnational crime, and legaleducation are just a few of the items. Thewhole occasion was a striking sign of theimportance of Commonwealth activity in thelegal field, including of course the judiciaries ofits member countries – and also the non-common law countries such as Cameroun,Mozambique and Sri Lanka. And the othermeeting is still to come: the CMJA’s ownToronto conference next year, which promisesto be both relevant and enjoyable.

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EDITORIAL

The Editor welcomes contributions of previously unpublished work, such as articles, reviews, essays.Contributions, ideally no more than 3,000 words, should be sent to the Editor, Commonwealth JudicialJournal, c/o CMJA, Uganda House, 58–59 Trafalgar Square, London WC2N 5DX.

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OBITUARY: SOLON NIKITAS

We regret toreport the recentdeath of SolonNikitas, a distin-guished Cypriotjudge and asupporter formany years of thework of theCMJA.

Solon Nikitas was born in Limassol, Cyprus inOctober 1937. He worked for the NicosiaChamber of Commerce before deciding tostudy law in England and qualifying as abarrister. From 1961 to 1971 he maintained aprivate practice as a lawyer in Nicosia. He wasappointed as a District Judge on 1 January1971. He was promoted to Senior DistrictJudge on 10 October 1980, and to President ofthe District Court on 1 January 1982. On 19November 1988 he was elevated to theSupreme Court, where he served until 27March 2003 when he was appointed AttorneyGeneral of the Republic of Cyprus, a post fromwhich he resigned in April 2005.

He was elected as a member of the Council ofthe CMJA in 1994 and as Regional VicePresident for the North Atlantic andMediterranean Region of the CMJA in 1997.He resigned from this position on his appoint-ment as Attorney General of the Republic ofCyprus but continued to support the aims ofthe CMJA. As Regional Vice President, heorganised the very successful follow-up confer-ence on the Latimer House Guidelines in

Larnaca, in October 1998 on “The Role of theJudiciary in Developing and maintaining avibrant human rights environment in theCommonwealth”. He participated in manyconferences all over the world and gavelectures and speeches on several legal subjectsduring his long and distinguished legal andjudicial career.

Solon had been battling cancer for some yearsnow, a little-known fact outside an intimatecircle. He passed away on 23 October 2005.At his funeral service, held on 24 October, thePresident of the Supreme Court, JusticeChristos Artemidis, said of Solon “You will beremembered by our society for your excellentattributes: your honesty, independent judge-ment and unique integrity.”

Justice Petros Artemis, Council Member of theCMJA said of Solon

“Solon was one of the most culturedpersons I have ever met. I have knownhim since 1972 and I can testify as to hisqualities. He was a lover of the Arts and aregular visitor of museums and galleries,both at home and abroad. He was a‘student’ of philosophy and literature, andhis wide knowledge of the subjects wasevident in all his public speeches andaddresses. As a judge, he was character-ized by his independence of mind and hisintegrity. The rule of law was uppermostin his conscience and in his mission he wasnever ‘a respecter of persons’ but always aservant of the law.”

All, or almost all, defences of judicial reviewunder a bill of rights, (be it a strong,entrenched, constitutionalised model likeCanada’s or a weak, statutory version likeNew Zealand’s or the U.K.’s) rest on some sortof thinking as follows:

It is one thing to turn to majority rules andvoting and letting the numbers count todecide questions of appropriate marginaltax rates or how much to spend ondefence or whether to build a newhighway or bridge. Majoritarianism iseven acceptable, perhaps, as a method ofdetermining whether to spend limitedresources on schools or on hospitals orwhether to go to war or what percentageof gross national product should be givenin foreign aid. But on contested moralissues, issues having to do with the treat-ment of minorities or the resolution ofissues of principle and of right – such aswhat equality demands for incarceratedprisoners or those wishing to marry orwhat freedom of religion dictates when itcomes to funding schools or what to wearat school or what may be ingested as partof rite and ritual – majoritarian decision-making will not do. We, as a society, mustdecide these matters on moral grounds.We need a non-elective process. We needimpartiality. We need sensitivity to the bestelements of the competing moralpositions, not judgments based on self-interest and calculations fuelled by theconcerns of pocketbook and prejudice. Inshort, we need judges and judicial reviewnot elections and letting the numberscount.

I think that paragraph not unfairly sums up theviews of many, probably most, self-styledhuman rights advocates – lawyers, legalacademics, N.G.O. officials, judges, what haveyou. It conveys the widespread belief that

elective majoritarian institutions cannot betrusted to take rights seriously, but that non-elective institutions, more particularlycommittees of ex-lawyers, can be so trusted. Ihope, too, that it conveys just a hint of themoral self-righteousness that almost alwaysattaches to those who proclaim their steadfastattachment to holding politicians accountableto human rights standards and norms. Disdainfor democratic decision-making and a sort ofnoblesse oblige elitism are never too far belowthe surface.

Certainly the various human rights conferencesand sessions I have attended over the yearshave all had one thing in common. Every singleone of them has had the feel of a SalvationArmy revivalist meeting, the air being thickwith a strong sense of self-satisfaction and thedoing of God’s work (though that comparisonis probably unfair to the Salvation Army,which clearly does accomplish much goodworks).

Some writers clearly pre-suppose some sort ofa division between those who care not a whitfor rights and those whose entire beings arepassionately focused on upholding andadvancing them. But in the democratic worldsuch a division is patent nonsense. No oneprofesses to be wholly against rights or to sayrights are unaffordable.

Why rights?True, some people understand rights instru-mentally, as a means to some further good suchas equality or liberty or justice. For them, theright to free speech, say, or to freedom ofreligion is very much something that is desir-able and important and, yes, affordable, but itsvalue lies in the good consequences that flowfrom living in a society that allows one to criti-cize the government or to practice therequirements of one’s religion. These rights,and others, are not goods-in-themselves; they

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HUMAN RIGHTS – CAN WE AFFORD TO LEAVE THEMTO THE JUDGES?

Professor James AllanGarrick Professor of Law, University of Queensland. A paper delivered at the CommonwealthLaw Conference, September 2005 and reproduced with the kind permission of theCommonwealth Lawyers Association.

are goods because they lead on to greaterhuman happiness or welfare or equality orfreedom. From that instrumental grounding,however, it simply does not follow that rightsare not valued or not valued very much.

Of course for some other people rights are seenas inherently good, as goods-in-themselveswhatever the consequences they may engender.The idea here is that each human being simplyhas basic rights. Regardless of other aims,goals, duties or even fairly horrendous long-term consequences to the cumulative welfareof society, certain basic entitlements or protec-tions just are mandated. On thisnon-instrumental view, rights rest on some sortof political morality that simply, andabsolutely, refuses to look behind the claim torights. The basic currency of these sort ofmoralities is rights themselves; they are thestarting point. Adherents will not, or logicallycannot, answer the question ‘Why are certainrights good or desirable?’ in terms of someother end as to do so would be to collapse theirgoods-in-themselves or strong rights thinkinginto an instrumental or weak rights sort ofthinking as outlined above.

My point here, however, is simply that bothsorts of thinking about rights – the non-instru-mentalist, Kantian, Dworkinian, natural lawvarieties and the instrumentalist, Benthamite,anti-natural law varieties – take rightsseriously. They both do. Talk of not being ableto afford rights seriously distorts where themain debate is occurring. That debate is notbetween some group that says we can affordrights (no doubt while being portrayed inangelic dress and on the correct side of someunfolding Whiggish history) and some othergroup that says we cannot afford rights.

Rather, the live and active debate about rightsis occurring between, on the one hand, thosewho seek (or who have successfully sought) tohave the interpretation and elaboration ofrights and what they do and don’t demandhanded over to unelected judges (let’s behonest, to committees of ex-lawyers) and, onthe other, those who resist this trend – thosewho believe rights are important but that theirenumeration and elaboration should rest withthe democratically elected representatives ofthe people.

Why judges?The real, live, important debate about rights isbetween those who favour some sort of bill ofrights (and the judicial review of legislation itdrags with it, whether a statutory or constitu-tionalised model) and those who oppose billsof rights (in the context of a functioningdemocracy). Of course, someone who isadamantly opposed to a bill of rights in, say,Australia or New Zealand or Canada maynevertheless favour one in Hong Kong.Context is never irrelevant and if the choice isbetween social policy-making by unelectedHong Kong judges and social policy-makingby unelected members of the National People’sCongress of the PRC, following the orders ofsome politburo, few would seriously prefer thelatter.

Hence the title to my paper. No one, I take it,will be surprised to hear that my answer to‘Human Rights – Can We Afford to LeaveThem to Judges?’ is ‘no’. I am a strong critic ofbills of rights and have argued that judges donot do a noticeably better job protecting rights.That is, on a consequentialist or utilitarianmeasure of best outcomes, there is no persua-sive evidence for thinking unelected judges doa better job than do elected legislators indrawing the contested and debatable socialpolicy lines down in the quagmire of detail thatrights demand.

Meanwhile Jeremy Waldron has spent the lastdecade making the strong argument that rightsthemselves, or at least strong, non-instru-mental understandings of rights, demand thatwe leave these decisions with elected parlia-ments and not with committees of 7 or 9 or 10ex-lawyers. The ‘right to participate’, hethinks, demands that a system whereby thevotes of 30 million electors beat those of 25million or those of 325 MPs beat those of 290MPs is preferable to one where the votes of 5judges beat those of 4. The former treats yourfellow citizens as equals and as autonomousagents. The latter does not.

Abstract rights and social realitiesMake no mistake. However much a bill ofrights might be sold to the public up in theOlympian heights of moral abstractions(‘equality’, ‘due process’, ‘no unreasonablesearches’ ‘freedom of religion’ etc.), itinevitably plays out down in the quagmire ofsocial policy-making detail. Up in the

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Olympian heights there is consensus or nearconsensus. (Hands up everyone against freespeech!) Down in the quagmire of drawingcontested lines when it comes to hate speechregulations and defamation provisions andcampaign finance rules there is only everdisagreement and dissensus – disagreementbetween sincere, reasonable, smart, even nicepeople. And repeat the mantra ‘free speech,free speech, free speech’ as often as you like, itwill not help one iota in drawing thosecontested, debatable lines.

So we must never forget this fact of social life,namely that other people will disagree with usabout the implications of equality vis-à-vismarriage or free speech vis-à-vis campaignfinance rules or freedom of religion vis-à-visreligious headscarves or even what constitutesan unreasonable search. And that disagree-ment will be between people who all valuerights and who all think we can afford them. Itwill be between smart, sincere, well-inten-tioned, even nice people. The question bills ofrights supporters must answer is why, on allthese sort of intensely debated moral issues, theviews of judges should be made the presump-tively correct ones. Even that great supporterof unelected judges, Ronald Dworkin,concedes that under such instruments on‘intractable, controversial, and profoundquestions of political morality that philoso-phers, statesmen, and citizens have debated formany centuries [all of the rest of us non-judgeswill just have to] accept the deliverances of amajority of the justices, whose insights intothese great issues is not spectacularly special’.

A case study: New ZealandNow this being a law conference I am only tooconscious that I need soon to start mentioningsome cases and the more the better, if for noother reason than to make most of youcomfortable. So here goes. Here’s a briefsurvey that I hope will give a flavour or hint ofwhat’s wrong with bill of rights adjudication.

Let’s start with statutory bills of rights. I’mextremely familiar with New Zealand’s so I’llbegin there. It is beyond dispute that in 1990New Zealand opted for an enervated, statutoryBill of Rights Act that on its face even lost outto past inconsistent statutes. Section 4 of theAct provides:

‘No court shall, in relation to any enact-ment (whether passed or made before orafter the commencement of this Bill ofRights), -

(a) hold any provision of the enactmentto be impliedly repealed or revoked,or to be in any way invalid or ineffec-tive; or

(b) decline to apply any provision of theenactment

by reason only that the provision is incon-sistent with any provision of this Bill ofRights.’

In fact it is hard to imagine a more gutted orenervated instrument. In order to have any sortof bill of rights at all its main sponsor, SirGeoffrey Palmer, had had to capitulate on itsbeing an entrenched, constitutionalised model.Then he had had to remove the remedies clauseand insert a new operative provision that said,explicitly, that this new statute would lose outto all other statutes, whenever enacted, shouldthey be mutually inconsistent in any way. SirGeoffrey was even forced to say, in moving theBill’s second reading that: ‘[This] Bill createsno new legal remedies for courts to grant. Thejudges will continue to have the same legalremedies as they have now, irrespective ofwhether the Bill of Rights is an issue.’ ((1990)510 New Zealand Parliamentary Debates3449, 3450). And even then it only passedthrough Parliament on a party political basis.

From that humble starting point the NewZealand judges quickly re-made this statutorybill of rights in an image more suited to whatthey thought it should say. They read back in aremedies provision (Simpson v Attorney –General [Baigent’s Case] [1994] 3 N.Z.L.R.667); they virtually ignored the operativeprovision that said other statutes would prevailagainst the Bill of Rights Act in the event ofinconsistency (in the same case); they simplygave themselves the power to issue declara-tions of inconsistency (Moonen v. Film andLiterature Board of Review [2003] 2 N.Z.L.R.9); they put great weight on the reading downoperative provision (see, for example,Hopkinson v. Police [2004] 3 N.Z.L.R. 704)where the judge reads a ban on destroying theNew Zealand flag in a way that ‘dishonours’ itas allowing the burning of the flag, so long asit is not done in a way that ‘defiles’ it. In short,

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in a mere dozen years they moved NewZealand a noticeable distance towards whatjudges do under an American or Canadian-style entrenched, constitutionalised bill ofrights.

Reading down provisionsIt is important to pause for a moment andrealize where the main potential lies for trans-mogrifying weak judicial review (under astatutory bill of rights) into something thatlooks not unrecognizably like strong judicialreview (under an entrenched, constitution-alised bill of rights). That potential lies inreading down provisions, which both the NewZealand and UK bills of rights contain. TheNew Zealand version, section 6, reads:

Whenever an enactment can be given ameaning that is consistent with the rightsand freedoms contained in this Bill ofRights, that meaning shall be preferred toany other meaning. (italics mine)

The U.K. version, section 3(1), reads to start:

So far as it is possible to do so, primarylegislation and subordinate legislationmust be read and given effect in a waywhich is compatible with Conventionrights. (italics mine)

Leave aside the somewhat scholastic – and inall likelihood moot or otiose – question ofwhether ‘can be given’ is more, or less,commanding than ‘so far as is possible’, andwhether ‘shall’ is more, or less, peremptorythan ‘must’, I take it that everyone can at leastsee the potential danger with reading downprovisions such as these. That danger is thatjust about any statutory language – howeverclear in wording and intent – might possibly begiven (by the judges) some other meaning orreading. In other words, there is not all thatmuch beyond the wit of man when it comes tobeing directed to give the words of a statute ameaning you, the point-of-application inter-preter, think more moral and more in keepingwith what you believe to be fundamentalhuman rights. What you ‘can’ do, what it is‘possible’ to do, may prove to be a very greatdeal indeed. It may come close to what thedisinterested observer would characterize as anout-and-out re-writing or re-drafting of theoffending statute.

These reading down provisions, then, appearlargely to leave it to the unelected judges toconstrain themselves, to decide how far theycan go in reading ‘black’ to mean ‘white’ whilekeeping a straight face. The farther they go, ofcourse – the straighter the faces they can keep– the more this exercise in statutory interpreta-tion begins to collapse into an exercise inredrafting statutes to make them read as thejudges would prefer them to read (or, morepunctiliously put, as those unelected judgeshappen to believe is in keeping with howrather abstract, indeterminate rights guaran-tees should play out down in the quagmire ofsocial policy line-drawing).

There is at least the chance, moreover, that aparticular set of judges in a particular jurisdic-tion would choose to keep a particularlystraight set of faces. At that point there wouldseem to me, as I said, not to be all that muchdifference between openly striking down astatute (for its claimed inconsistency with aconstitutionalised bill of rights) and rewritingthat same statute (to be consistent and compat-ible with a statutory bill of rights). True, in thelatter case the legislature can respond witheven clearer words indicating its intention. Butthose new, clearer, amended words would alsohave to be read by the judges as consistent andcompatible with the bill of rights, if possible.(Moreover, reading down analyses canencourage judges to use global jurisprudenceas a kind of smorgasbord, picking here andthere what they need to reach the conclusionthey want. So in Hopkinson the judge uses theUS flag burning cases as the basis for sayingshe should read the provision at issue asnarrowly as possible, despite the fact that USfree speech jurisprudence is so different to NewZealand’s. And notice, too, that there are twodistinct methods of judicial creativity: (a)giving words new meanings and (b) supple-menting the words, with implications,unenumerated rights, unwritten principles andmore. The latter, (b), is often the most effectiveweapon in the activist judge’s armoury.)

I have already indicated that judges in NewZealand have started down this road. Indeed,and astonishingly, three of seven judges ontheir highest domestic court only four yearsago were prepared to say that because of theNew Zealand Bill of Rights Act 1990 it was nolonger the case that later statutes impliedlyprevail over earlier, inconsistent statutes (R v

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Pora [2001] 2 N.Z.L.R. 37). They were of theview that you could use the bill of rights toprefer the earlier statute if you thought it morein keeping with a rights-respecting outcome.

United KingdomWhat about here in the UK, though, with itsvery recent Human Rights Act? Too little timehas passed since that Act has come into forceto do more than signal possibilities, indicationsof how the reading down provision might beused there. Consider the case of Ghaidan v.Godin-Mendoza ([2004] 3 All E.R. 411). Inthat case the House of Lords (Lord Millettdissenting) held that the section 3 readingdown provision in the Human Rights Actenabled a court to depart from theunambiguous meaning that a piece of legisla-tion would otherwise bear. (That is theircharacterisation, by the way, not mine).

Lord Nicholls of Birkenhead made the claim inthese words:

‘It is now generally accepted that theapplication of s. 3 does not depend uponthe presence of ambiguity in the legislationbeing interpreted. Even if, construedaccording to the ordinary principles ofinterpretation, the meaning of the legisla-tion admits of no doubt, s. 3 may none theless require the legislation to be given adifferent meaning … Section 3 mayrequire the court to … depart from theintention of the Parliament which enactedthe legislation …. It is also apt to require acourt to read in words which change themeaning of the enacted legislation, so as tomake it convention-compliant [meaningbill of rights compliant].

Lord Steyn’s view was that the reading downprovision applies even if there is no ambiguity.‘The word “possible” in s. 3(1) is used in adifferent and much stronger sense’. Hesuggested in clear terms that the interpretationadopted need not even be a reasonable one. Healso strongly urged that the English courts optto use this reading down provision – in blunterterms, to interpret away any judiciallyperceived flaws in legislation – as the primeremedial remedy and resort to s. 4Declarations of Incompatibility only in excep-tional circumstances. Meanwhile Lord Rodgeradopted a sort of ‘judicial vandalism’ test, the

implication being that anything short of drasticrewriting of legislation is acceptable.

And just to give you the full flavour of thepotential power of these reading down provi-sions, it is crucial to realize that in reachingthis result their Lordships overruled one oftheir own House of Lords authorities – a caseon the meaning of exactly this same statutoryprovision, an authority only five years old, andone that had held the meaning to be clear.Their Lordships relied implicitly, and arguablyexplicitly, on changing social values (or theirperception of them) and the notion of holdingthe legislature to a standard that ‘keeps pacewith civilization’, a sort of judicial reasonable-ness test stopping short only at the doorstep ofvandalism, as they put it.

Even Lord Millett, in dissent I remind you,agreed that ‘even if, construed in accordancewith ordinary principles of construction, themeaning of the legislation admits of no doubt,s. 3 may require it to be given a differentmeaning’. The only constraint Lord Millettwould have the judges impose on themselves isthat the meaning they give the statutory provi-sion be ‘intellectually defensible’. And be clearthat he means this not as any very high hurdleto be got over – the judge, Lord Millett thinks,‘can read in and read down…[he can] supplymissing words, so long as they are consistentwith the fundamental features of the legislativescheme [as determined by the judge himself] …[the judge even] can do considerable violenceto the language and stretch it almost (but notquite) to breaking point’.

On this sort of degraded standard, four of theirLordships thought what they were doing wasintellectually defensible; one did not.

CanadaWhat about strong judicial review, as happensunder a constitutionalised bill of rights? Thattakes us to my native Canada. Now someCanadians might be tempted to object, to saythat the s. 33 notwithstanding clause makesCanada’s Charter of Rights one that delivers aform of weak judicial review. In my view, thatis nonsense, not least because in the two dozenyears of the Charter’s existence the s. 33notwithstanding clause has never been used –not one single time – by the federal CanadianParliament. Note, too, that this override provi-sion applies only to some, not all, of the

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enumerated rights, that it lasts for only fiveyears (though is renewable), that it cannot beused retrospectively (say the judges), and thatits wording implies elected legislators have tobe against rights rather than that they aretaking a different view of what someamorphous right requires down in thequagmire of social policy line drawing – whichto my mind is the accurate, non-questionbegging way to describe what would behappening.

Be that as it may, let us recall some of thedecisions of the Supreme Court of Canada.The judges there have decided that free speechconcerns trump health and safety concerns inthe context of tobacco and commercial adver-tising (RJR MacDonald Inc v Canada (1995)127 DLR (4th) 1); they have decided whatcampaign finance rules are acceptable (Harperv Canada (Attorney General) [2004] 1 SCR827), that each and every refugee claimant toCanada must be given an oral hearing (Singh vCanada (Minister of Employment andImmigration) [1985] 1 SCR 177), and that thelegislature’s ban on private health insurancewas unconstitutional (Chaoulli v Quebec(Attorney General) 2005 SCC 35), as was itsconfining of marriage to heterosexuals(Halpern v Canada (AG) [2003] OJ No.2268). They have twice over-ruled the federalParliament on whether convicted and incarcer-ated prisoners must in all cases be allowed tovote (Sauve v Canada (Attorney General)[1993] 2 SCR 438 and Sauve v Canada (ChiefElectoral Officer) [2002] 3 SCR 519), indeedin the latter of those cases the Chief Justice ofCanada has referred obliquely to countries thatdisagree with her court’s 5-4 ruling, includingAustralia, the U.K., the U.S. and New Zealand,as ‘self-proclaimed democracies’. (Perhaps Ishould pause for a moment and allow fully tosink in the staggering self-assuredness – no, theout and out moral sanctimoniousness and self-righteousness – of a Canadian judge callingNew Zealand, Australia, the US and the UK‘self-proclaimed democracies’?)

I could go on and mention other Canadiancases, say the one striking down the compro-mise abortion legislation (R v Morgentaler[1988] 1 SCR 30) or others. However, let itsuffice simply to recall the case of Reference ReRemuneration of Provincial Court Judges([1997] 3 SCR 3), a scandalous decision inwhich the Canadian Supreme Court struck

down legislation reducing the salaries ofprovincial judges as part of a general provincewide reduction of public servants’ pay. Thecourt, using the Preamble to invent a sweepingnew constitutional principle, held that evenfreezing pay (not reducing, but freezing and inthe context, recall, of freezing all publicservants’ pay) would be unconstitutional in theabsence of some sort of commission or tribunalbeing established to set judges’ pay. AsGoldsworthy describes it: ‘[F]irst year lawstudents [are] taught to clear their heads of‘mush’ and think like lawyers. In [this] case,the Supreme Court seems to have undergonesomething like the same process in reverse. Butthere is a difference: the Supreme Court’s mushis calculated – it is mush in the service of anagenda …. [it is] a disingenuous rationalizationof a result strongly desired by the judges onpolicy grounds.’

And of course in this case, because no explicitrights were referred to but only the Preamble,the s.33 notwithstanding clause was not evennominally in play. There was no way even intheory to countermand the judiciary. (Thesame is true in the prisoner voting case ofSauve mentioned above because this involvedone of the rights not subject to the s.33override.)

The growth of judicial powerMy basic point is this. I do not think it likelythat any legal academic could, with a straightface, argue that the power of the judiciary hasnot increased – and increased markedly –across the common law world. And much,though not all, of that increase is directlyrelated to the effects of bills of rights. By artic-ulating rights in amorphous, indeterminate butalso emotively attractive terms, these instru-ments certainly finesse disagreement down inthe quagmire of contentious and disputed line-drawing, but they finesse disagreement byabdicating it to an unelected judiciary. This,though, is not the only way, or indeed the bestway, of dealing with rights. One can prefer toleave the articulation of rights to the electedlegislature via more detailed and specificstatutes. That preference in no way amounts toa view that rights cannot be afforded. As I said,it amounts to thinking that what we cannotafford is leaving rights to unelected judges.

Morality tales can seldom be resisted. Formany it is comforting to think some ultimate

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saviour exists to remedy breaches of rights.Rather than rely on fallible politicians and thevoters who elect them, they find it a greatsolace to know (well, to imagine) one’s rightsmight be securely protected in some morepowerful and effective way, and so upheld bytrustworthy, wise and infallible beings. Thatcan be an attraction of bills of rights; it is onethat can be strong enough to push from viewthe fact these instruments elevate the impor-tance of judges, lawyers, yea even lawprofessors, by letting them decide, argue aboutand critique where to draw fundamental socialpolicy lines down in the quagmire of reason-able disagreement over tough moral choices –what immigration procedures to have, say, orwhether to extend legal recognition to gaymarriage. It drives resolution of importantsocial issues from the political arena into thecourts and gives these judges, lawyers andpuffed up law professors a say that non-lawyers are denied. Heck, it even allows themto travel the world to conferences to meet with

other judges, lawyers and legal academics whoare drawing the same sort of lines.

The real surprise, I suppose, is that there is notmore support than there is from judges,lawyers and law professors for bills of rights.

To conclude, of course we can afford rights.Down where I teach in Australia there aremany legally enforceable rights. It is one of themost desirable places on earth in which to live.The UN’s ranking of countries with the bestquality of life – admittedly a subjective exercise– has put Australia top the time but last and inthe top three last time. All Australia lacks is abill of rights. I certainly hope it stays that way.

For further reading see J. Allan, Sympathy andAntipathy: Essays Legal and Philosophical(Ashgate, 2002); ‘The Effect of a Statutory Billof Rights Where Parliament is Sovereign: TheLesson from New Zealand’ in (eds. Campbell,Ewing and Tomkins) Sceptical Essays on theHuman Rights Act 1998 (OUP, 2001); ‘ADefence of the Status Quo’ in (eds. Campbell,Goldsworthy and Stone) Protecting HumanRights (OUP, 2003).

DOROTHY WINTON TRAVEL BURSARIES FUNDCONTRIBUTIONS WELCOME

This fund was set up in the name of the first Secretary of the Association who died inOctober 2003. Dorothy's time as the first Secretary of the Association was a very happy one

and she was very concerned that justice (and support for justices) should be available topoor and rich nations alike.

"She had considerable knowledge of the Commonwealth, a genuine interest in its peopleand she was prepared to travel extensively to promote the Association, being especially

concerned that people from the less well developed countries should be able to play a fullpart." stated Brenda Hindley, former Editor of the CJJ.

The CMJA and the family of Dorothy Winton want to thank those who have alreadycontributed to the this fund which currently stands at £4,974.82.

The Bursary will be used to assist participation of judicial officers to attend the TriennialConferences of the Association.

Contributions to the Bursaries should be made (by cheques drawn on a UK bank, banktransfers – making clear what the transfer is related to or bankers draft made payable toCMJA) and should be sent to the Commonwealth Magistrates and Judges Association at

Uganda House, 58 Trafalgar Square, London WC2N 5DX, UK.

Please remember that as a registered charity, the CMJA can reclaim tax paid by UK taxpayers. If you include your name and address (eg on the back of the cheque), we can send

you the form to fill in for gift aid purposes – a simple declaration and signature.

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Most speeches on court delay begin byreminding their audience that delay has alwaysbeen with us. I will make no exception to thisrule, as my courses in court administrationalways begin by asking students to read verses13-27 of chapter 18 of the Book of Exodus,where Moses, having brought the TenCommandments to the people of Israel, findshis people exhausted after spending all daywaiting to bring their cases before him. It isMoses’ father-in-law Jethro who recommendsthat others be trained in the law so that theycan handle the simple cases and reserve onlythe difficult ones for Moses.

I recount this story to court administrators as areminder that their field did not spring freshfrom the mind of American law professorRoscoe Pound in 1906. I recount it here toremind you not only of the long history of courtdelay, but of the long history of successful effortsto reduce delay. And to remind you as well ofJethro’s words, for even as Moses was applyingthe Ten Commandments, Jethro told him that hewas not doing justice if the effort was exhaustingthe very people it was supposed to benefit.

Colonial inheritanceIf court delay is neither inevitable noruniversal, its existence is a result of humanaction — and in particular over the past 200years, the result of policy decisions made bypublic authorities. In the context of theCommonwealth, these were policy decisions ofBritish colonial authorities who, historicallegend tells us, bequeathed to their colonies theblessings of the English common law.

These authorities also created a colonial courtsystem and legal process that combinedelements of home-country legal practice withelements of colonial administration. Thus HighCourts of Justice were established in far-flungoutposts of empire, emulating the cathedral ofjustice in the metropolis. But the bulk of theeveryday work of the courts would be done bya sprawling network of so-called subordinatecourts, staffed not by the lay volunteers found

back home, but by a new generation of law-trained civil servants. Supervision ofsubordinate judges would be made the respon-sibility of the High Courts themselves. This stepdid reflect an awareness that the principle ofjudicial independence requires that supervisionof individual judges be done within thejudiciary and not by government. However, italso built into Commonwealth court systemssome of the characteristics that still plaguetoday’s postcolonial courts.

First, the judicial hierarchy has become anadministrative hierarchy, so too few subordi-nate courts have developed the managerialskills, personnel and institutions to governtheir own affairs.

Second, the subordinate judiciary remains toomuch in a civil service mould and mindset.Thus a predominantly youthful corps of judgesis constantly mindful of impressing theirsuperiors to curry favour for future assign-ments and promotions. And reporting andrecordkeeping has transformed court statisticsgathering into a form of balance sheets, workweighting and managerial accounting, ratherthan a way of improving performance andexpediting justice.

Third, the elaborate nineteenth-century adver-sary process still visible in postcolonial trialcourts—but removed from the discipline of laydecision-making provided by temporarybodies of citizens assembled into juries—hasfragmented the trial process to the point wheretrials have become a deconstructed sequence ofdiscrete events that continue for months andyears. Twentieth-century innovations in courtprocedure (e.g. pre-trial disclosure of evidenceand pre-trial examination for discovery) arelargely missing, so judges find themselvesplaying a continuing role in a discontinuousand lengthy process.

Fourth, the principle of party control of litiga-tion, seen by the English as the centralcharacteristic of common law procedure,places the bar in a position of strength and

DELAYS IN THE ADMINISTRATION OF JUSTICE

Professor Carl BarrProfessor Emeritus, Brock University, St. Catharines, Ontario, Canada; Adjunct Professor ofPolitical Science, York University, Toronto, Ontario, Canada; and Principal, Justice DevelopmentInternational Ltd. An edited version of a paper delivered at the CMJA Conference in Accra.

discourages reform initiatives from thejudiciary. While the English closed out thetwentieth-century by abandoning the principleof party control in favour of Lord Woolf’sapproach to civil procedure, the bar in manyCommonwealth countries has reached levels oforganization unknown in the mother country,retarding appropriate and needed change.

Fifth, the desire to establish what the Britishunderstood as the rule of law meant that theexcesses of law enforcement were accepted aslong as they took place within the “ordinarycourts” of the colonial civil establishment.Thus long periods of pre-trial incarcerationexisted in colonial times despite principles ofthe presumption of innocence, because judicialreview—however open-ended and generous togovernment—was in theory still available.

Taken together, these characteristics of theBritish colonial legal system produced resultssubstantially different from what occurredback in England. They have left too manypostcolonial countries with a procedurallyelaborate system that relies too much onhierarchical and bureaucratic control mecha-nisms and finds change very difficult. As aresult, systems that should have transformedthemselves in the years after independence nowoperate in a manner that combines anabandoned colonial regime with an abandonedmodel of British justice. [Latin Americacountries provide an interesting historicalparallel. They achieved independence from1810-25, so their civil law systems missed themajor changes in continental European proce-dure in the 19th century, and remainexcessively paper-based. A major exception isCuba, which remained a colony until 1898. Asa result, the current Cuban regime is pressingits Latin American neighbours to add moreoral proceedings—the same recommendationsthat come from U.S. consultants funded byUSAID and the World Bank, and have beenattacked by bar associations claiming thatAmerican reformers do not adequately under-stand civil law traditions.] Court delay is onlyone symptom of the malaise.

Given the mixed motives of many post-independence regimes, it is perhaps fortunatethat the courts survived with as much of theirdignity and independence intact as they have.But even so, the time for reform and improve-ment is well overdue in too manyCommonwealth countries. Fortunately, the

current generation of court reform, buoyed byrule-of-law initiatives in the developmentcommunity, provides a basis for thoughtfuland sustainable reform. But is it worth theeffort? The next section argues that it is.

Consequences of Extreme DelayWhat happens when court delay and relateddefects in case processing become so seriousthat trial courts can no longer perform manyof their basic functions? While reformerseverywhere lament that justice delayed isjustice denied, the time for taking cases to trialor other disposition is typically within param-eters sufficiently manageable that courts canstill effectively assess evidence and applyprinciples of law. However, court systemstoday often struggle with such extreme delayand large backlogs that their best efforts tomaintain judicial independence and the rule oflaw have gone hand in hand with criminalprocesses that punish the innocent and acquitthe guilty, and civil processes mobilised bythose without valid claims in order to pressureadversaries to abandon legitimate claims.

Effects on criminal justiceOn the criminal side, extreme delay has under-mined the operation of what is now termed“the criminal justice system” to the point thatit cannot achieve either of its fundamentalobjectives. Some 40 years ago, American legalscholar Herbert Packer laid out what he saw astwo competing purposes of the criminalprocess: crime control and due process. Ratherthan tilting the system in one direction oranother, extreme delay in criminal courts hasundermined both of these objectives. Accusedpersons’ rights are jeopardized because theyoften spend long periods of time in pre-trialdetention. In turn, crime control objectives arejeopardized because by the time these accusedare brought to trial, witnesses are unavailableand acquittals are entered.

While it is difficult to obtain court case statis-tics that can be validly compared acrossjurisdictions, especially from one national legalsystem to another, it appears on the basis ofavailable data that conviction rates are muchlower in countries with longer periods of pre-trial delay. I have seen figures of 25% and 30%conviction rates at trial in courts in which casesaverage as many as 100 appearances before adisposition is entered. Where there is less delay,conviction rates may fall below 50% but gener-

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ally rise to 60% or more following trial.Obviously, conviction rates are higher whenprosecutors are more diligent in screeningcases, and when guilty plea dispositions areadded to trial dispositions. But even with thesefactors taken into account (and some of themactually make the differences in trial disposi-tions appear smaller than they are), it is clearthat extreme delay makes it less probable thatan accused will be found guilty at trial.

Because extreme delay undermines both dueprocess rights of the accused and crime controlobjectives of law enforcement, it is notsurprising that the greater the delay in criminalcases, the higher the percentage of those incustody who have not been convicted. Thehighest estimate I am aware of is 80%,provided by a senior corrections official inEthiopia (which has an inquisitorial systembased on the Indian Penal Code of 1907). Thusit would not be unfair to characterize theresulting process as “punishment before trial.”

Effects on civil justiceOn the civil side, extreme delays provide anincentive for individuals to bring invalidclaims. Those without valid claims can preventindividuals with valid claims from securing acourt order vindicating those claims. As thelitigation drags on, pressure builds for theparties to settle. If the litigation involvesmembers of the same family, someone with avalid claim may be pressured to abandon herclaim or (more commonly) her defence in orderto re-establish peace within the family.Settlement, perhaps facilitated by a mediator (aprocess that should be welcome in a well-functioning legal system), becomes yet anothertool for continuing dominance of the strongerparty regardless of what the law provides.

Extreme delays not only encourage litigantswith invalid claims, but also discouragelitigants with valid claims. Redress of wrongsis then sought through extra-legal means, andprivate enterprises emerge to serve individualswho seek “justice” outside the legal system.Some of these means may involve peacefulprocesses, such as the settlement of autoaccident claims through an agreement in whichthe injured party’s car is repaired by an agentof the party who takes responsibility for thedamages. But other means may be morecoercive and neither consensual nor legal.

As a result, civil litigation becomes largely asymbolic exercise for those litigants who trulybelieve they are pursuing valid claims. As allparties go on with their lives several years afterthe conflict from which litigation arose, thecase drags on until the claimant can tell hisstory to the judge and obtain satisfactionknowing that however matters turned out inreality, the judge agreed that his claim wasvalid. When I first visited a New Delhi lawyerwho had recently disposed of a 42-year-oldcase, he termed the whole matter “luxurylitigation,” because the disposition no longerhad any impact on the lives of those involved.

BacklogsCourts with extreme delay often suffer morefrom their past sins and omissions than fromtheir present level of activity. They are often—even typically—able to keep up with their heavycaseloads. But the elapsed time for cases tomove from initiation to disposition is exces-sively long, because delays in past years result incurrent numbers of adjourned cases being sohigh that the judges are constantly focusing onmatters from previous years before new litigantscan expect attention to be given to their matters.

Too often, these backlogs increase morequickly than courts can respond to them. Thismay be a function of increased demand, aslarge numbers of new cases overwhelm thecurrent complement of judges, and by the timehelp arrives, a new higher level of adjournedcases has been established. Or it may be afunction of decreased resources, as individualjudges are shifted and promoted, and theircourt workload is temporarily redistributed tocolleagues who are often in a position to dolittle more than maintain the status quo untilthe next recruitment cycle brings some relief.

In some respects, backlog reflects well on thejudges themselves. In Pakistan, for example,subordinate judges serve as elections officials, acredit to the respect in which they are held bythe public. Every time the national regimedecides to hold an election (even one challengedas unconstitutional by bar associationsthroughout the country), numerous judges arecalled away for training and for election dutiesas returning officers. Courts adjourn early andcourtrooms stand empty for the day. By thetime the courts return to normal, newly-insti-tuted cases further outnumber casedispositions, and the ability of the courts to dojustice in future cases is further undermined.

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Merits and Feasibility of Reducing DelayBefore recommending the steps in a strategy toreduce delay, it is necessary to address a priorquestion: is there any evidence that delay can bereduced? An expert’s prescriptions can soundreasonable and even persuasive, but have theyever worked? Are there any court systemswithout delay, especially among former Britishcolonies? If so, what conditions have facilitatedexpeditious justice? And finally, at what cost?Can we ensure that a fair and just legal systememerges from a delay-free court?

Singapore’s experienceThe best-known success story in the post-colonial court world is the Republic ofSingapore. Its Subordinate Courts have beenrecognized internationally for their innova-tions in management and legal processes, andthe Courts have extended their leadershipacross the Asia-Pacific region.

The key to their success is that the SubordinateCourts have taken responsibility for managingthe pace and quality of their adjudication.Judicial leaders constantly monitor what ishappening within and around the Courts, sothey can respond before problems becomevisible to the public. As a result, these courtshave a manageable inventory of cases that canbe (and typically is) dealt with so expeditiouslythat backlog rarely if ever develops.

To the extent that the Singapore courts areused to bolster an argument that delay can bereduced, a counter argument could be madethat their success is a reflection of thatcountry’s wealth, and particularly the human,material and technological resources that havebeen secured by the Subordinate Courts.

Experience elsewhereThere are two responses to this counterargument. The first is that while resources area key element of the Singapore success story,resources alone do not reduce delay. If theydid, courts in the United States and Canadawould be delay-free; instead, some of the mostprosperous metropolitan areas struggle withaccumulated backlogs. While courts inprosperous countries are rarely subject to theills arising from extreme delays, they oftenhave difficulty keeping up with incoming cases,because they fail to anticipate changes in theirimmediate environment. In contrast, theSingapore courts have the ability to scan their

environment, identify their resource needs,build a case for these needs, and effectivelymobilize their new resources. The combinationof managerial skill and judicial leadership thatmakes this possible is what sets them apart andproduces a court system committed to estab-lishing and maintaining high standards ofperformance.

The second response would consider whetherin fact backlog and delay can be reduced incountries with a less prosperous and evenimpoverished public sector. Available evidencesuggests a surprisingly strong positive answer.On the backlog reduction side, courts in threecountries with resource constraints andextreme delays have all reported examples ofsuccessful backlog reduction: Pakistan, Indiaand Ethiopia. Over several months in Pakistanin 2001-02, subordinate courts in Karachi(especially in District Central, after the DistrictJudge returned from a study tour to Singapore)showed an impressive reduction in adjournedcases during an Asian Development Bank pilotproject. While pilot courts in Lahore were lesssuccessful, a number of District Judges in othercentres in Punjab Province had strong recordsof effectively managing their caseloads. InBangalore, India, a thoughtfully-organizedlocal initiative was able to eliminate over100,000 pending cases in the subordinatecourts. In Ethiopia, easily the poorest of thethree countries, a pilot project in the populousAmhara Region could by 2005 report contin-uing annual reductions in pending cases.

There are other examples of court systems withlimited resources but strong traditions of expedi-tious case processing. Courts in Russia andformer Soviet republics typically take cases frominitiation to disposition in a matter of weeks orat most months—not years. Even in Moldova,reputedly the poorest country in Europe, trialcourts have little backlog, with no more than 10-15% of civil and criminal cases carried overfrom one year to the next. Courts in Cuba reportprompt disposition of cases as well.

While cross-national data on the pace of litiga-tion are not available in a form that allowssystematic comparison and ranking of courtsystems on that dimension, the accumulatingevidence shows widespread variation amongcourts in how fast cases move from initiationto disposition. At the same time, however, itappears that some of the most expeditioussystems are ones that critics would identify as

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having powerful governments less constrainedby an active and independent judiciary. Is fast-paced delay-free adjudication thereforeassociated with regimes that are less rights-based and democratic?

In fact, this is not the case. Two of thecountries mentioned above with extreme delay,Pakistan and Ethiopia, have had militaryregimes and less well-established democratictraditions. The successes that have beenachieved with backlog reduction in those twocountries are associated not with particularregimes or ideologies but with the commitmentof judicial leaders and their understanding ofhow they can effectively monitor and controlthe movement of cases in the face of complexlocal community and professional pressures.

CritiqueStill, given the countries that have successfullyreduced court delay and maintained a moreexpeditious pace of litigation, does court delayreduction represent the triumph of justice values,or the successful mobilization by strong govern-ments of the coercive power of judiciaries? Havewe moved from the maxim of “justice delayed isjustice denied” to a new principle that “justicerushed is justice crushed”?

Observation of the Subordinate Courts inSingapore several years ago suggests that awell-managed court accommodates thecompeting values of due process and crimecontrol. While the absence of judicial reviewauthority in Singapore limits the ability of theSingapore judiciary to use constitutionalstandards to nullify legislative action, and thecourts’ swift processing of large numbers ofcivil and criminal matters reinforces thegovernment’s crime control and social controlagenda, the pace of litigation can be and hasbeen modulated to ensure fairness. Thus forexample, capital offences do not proceed todisposition as expeditiously as non-capitaloffences of similar complexity. Additional timeis given for persons accused of capital offencesto obtain counsel, and for their counsel todiscuss charges with the Director of PublicProsecutions (an appointed official serving ongood-behaviour tenure). Given the lack ofjudicial discretion in sentencing for capitaloffences, these built-in delays allow the DPP toconsider reducing capital charges to non-capital ones. Thus it is the administrativeapparatus and practices of the SingaporeSubordinate Courts that allow expeditious

justice to proceed under strong judicial leader-ship across a wide range of cases, whileslowing the pace when the interests of justicesuggest doing so.

Strategies for Reducing Backlog andDelayThe previous section, in examining how it hasbeen possible to reduce backlog and delay, hasalready referred to some of the key principles,usually associated with the concepts of casemanagement and caseflow management, thatare prerequisites for successful use of partic-ular strategies and techniques. Thus forexample the courts’ responsibility for the paceof litigation was emphasized, along with theneed for judicial leadership to reduce backlogand delay. Given the widespread deteriorationof court systems under the assumption of partycontrol, the alternative of court control is nolonger optional—it is mandatory. The debateover court control versus party control haslittle meaning when the adjudication process isout of control.

This does not mean that the concept of controlrequires draconian or unilateral action. Theterm “control” should not be used in thecoercive sense associated with authoritarianinstitutions or dictatorial individuals (what myfriends back home would label “controlfreaks”). The term is most effectively used inthe tradition and meaning of Mary ParkerFollett, from her 1930s essay, “The Process ofControl”. Follett, saw control not as a superiordirecting a subordinate, but as the product ofthe interaction of all elements in a situation(i.e. an organizational setting or a socialsetting). To Follett, control emerges from thereciprocal relationship of all the elements in asituation. As a result, it follows that control isa continuing process, and is more effectivewhen it occurs in the early stages.

Follett’s essay reads like a handbook for caseand caseflow management. We know thateffective case management normally requires acommon understanding of how litigation willproceed right from the initiation of a case. In acomplex case, control in the early stages isreflected in a case conference or directionshearing to establish ground rules and expecta-tions so that later difficulties can be anticipatedand addressed. Control must be continuous inthe sense that there is always a date set forfuture action. All participants, including

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parties and counsel, need to be aware of theseexpectations as well.

Conversely, judicial attempts to exercise controlfrom the bench in a traditional more coercivemanner, but without the understanding ofcontrol as a process or the development of acaseflow control system, are doomed to failure.As my Canadian co-author Judge Perry Millarused to say years ago, “I only give an adjourn-ment when it is necessary, but the problem isthat adjournments are always necessary by thetime I’m on the bench, and I can’t do anythingabout them.” In the same way, I have seenresolute, determined and independent judges inAsia and Africa issue orders suspending the payof police officers who do not appear aswitnesses in court—a step unheard of inCanada or the United States. It usually resultsin the particular witness appearing, but doesnot address the continuing administrative diffi-culties that lead to this happening again andagain in the future.

Once we move beyond general concepts ofresponsibility, leadership and control, we needto consider how to develop a managementstrategy for a court and a court system. Thisrequires first that we distinguish betweenbacklog reduction and delay reduction. Theyare not the same. If the cases pending in a courtare too numerous for them to be disposed ofwithin a prompt and appropriate period of time,those cases make up that part of the court’sinventory that is termed the backlog. Before acourt can set up a case management system thatmonitors cases from their initiation, a courtmust reduce its backlog so that new cases can bedealt with when they are in fact still new.

Most of the so-called delay reduction effortsapplying caseflow management principles indevelopment projects have in fact focused onbacklog reduction, but they do not focus ondelay reduction itself. That is why it is ironicthat a valuable backlog reduction initiativeundertaken by the Government of India inrecent years has been labelled “Fast TrackCourts” even though these courts only workon resolving old cases that went off any fasttrack months or years before. Unless we movefrom backlog reduction to delay reduction, weare simply clearing the dockets of stale cases sothat we can apply the same all-too-staleapproach to the fresh cases. What is needed isa fresh approach as well.

What I propose is that as case backlog isbrought under control, an individual pilotcourt or courts should be set up and given aninventory of cases but no backlog. In otherwords, rather than establishing a new courtand then divided the existing caseload (forexample) six ways instead of five, the newcourt should have only enough cases to fill itstime but not so many that it is unable to hearnew matters according to a set of optimal timestandards and adjournment policies. Lawyersand litigants would need to understand thatthis court is operating under a new set ofassumptions and policies, and has beendesigned so that it can put those assumptionsand policies into practice. It is therefore whatcould be termed a Best Practices Court.

Implementing a Best Practices Court is a majorchallenge, but its benefits could be substantial.It would mean that new cases going to thiscourt would be dealt with while issues werestill fresh. Adjournments would be held to aminimum under new expectations spelled outto all participants. As a result, dispositionswould occur earlier in the process with fewerappearances, reducing the average amount ofjudge and staff time spent per case.

Administrative SupportsNeither backlog reduction nor delay reductionoccurs without substantial effort and organiza-tion. That is why the strategy paper citedabove is put forward as a checklist lest thosedeveloping a program miss a key componentneeded to ensure that a new and effectivecontrol system emerges.

For example, in keeping with Follett’s conceptof control and with the practical experience ofbacklog and delay reduction initiatives aroundthe world, a committee or committees shouldbe struck with membership representing allparticipants in the litigation process. On thecriminal side, this is likely to include sessionsjudges and magistrates (or their counterparts),court administration, prosecution, defence,legal aid, police and corrections. On the civilside, representation is likely to reflect thejudiciary, court administration, the private barand major litigant groups.

The committees should be used to mobilize theknowledge and build the commitment ofparticipants. The plan that emerges fromcommittee discussions may not be the idealsolution envisioned at the outset, but it is likely

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to be a more feasible and sustainable one. Irecall when one of the Karachi District Judgesassembled such a committee to exploreproblems in handling criminal cases. Nocomprehensive plan had yet evolved to addressbacklog, but the problems that interfered withcase processing were well known. So forexample, police officials were asked whyprisoners did not appear in court as scheduled.In response, the police complained that suffi-cient vehicles were not available, but thensuggested that if appearances of accused held incustody could be scheduled in both themorning and the afternoon—and not only inthe morning as had been the practice for manyyears—transportation of more prisoners couldbe arranged even with the existing vehicles. It isthese simple operational solutions that can onlyarise when knowledgeable participants are partof a continuous problem-solving process.

In the same way, lawyer participation is essen-tial to ensure that the practicing bar can adjustto the demands of a new system. While somelawyers may resist change, most simply need tovoice their concerns and make suggestions thatfacilitate effective implementation of proposedchanges. Too often, we treat the local legalculture as if it represents centuries of art andwisdom, rather than decades of ingrainedhabits. Part of the necessary adjustments mayreflect something potentially more onerous—theimpact of backlog and delay reduction on legalfees and lawyers’ incomes. But while backlogand delay reduction may reduce the income oflawyers who rely on billing for multiple appear-ances in protracted cases, it may increase theincome of lawyers whose clients can obtainmore expeditious resolution of their cases.“Don’t call it case flow management,” said asuccessful Canadian plaintiff’s lawyer 15 yearsago, “call it cash flow management.”

One of the key technical supports for backlogand delay reduction is the statistical informationnecessary to monitor and evaluate the effective-ness of reform efforts. Analysis of statisticaldata in fact serves multiple purposes. It allowscourt leadership to monitor current progressand identify potential problems. For example, abacklog reduction program may be successfullyreducing the number of older cases, but newcases may be entering the courts in largernumbers than before, obscuring or evenjeopardizing real progress. By having the data tomake valid assessments of the courts’ progress,court leaders can also identify and inspire those

who are successful. Finally, these statisticalassessments provide the kind of evidence thatfunding authorities, both within the countryand internationally, have come to expect whenthey evaluate performance in the public sector.

For backlog reduction, it is possible to use thebalance sheets traditionally found and stillmaintained in many trial courts, showinguncompleted cases at the beginning of amonth, new institutions, disposals, anduncompleted cases at the month’s end. I havefound it effective to compare the performanceof individual courts against their performanceone year before. In that way, there is an incen-tive not only to reduce adjourned cases butalso to maintain or increase dispositions incomparison with the previous year.Furthermore, judges are not competing againsteach other’s records, but can focus on thecontinuous improvement of their ownperformance. These figures can be aggregatedto cover a number of criminal courts in adistrict, or a number of civil courts.

For delay reduction, I recommend a new butsimple statistic that Bob Hann has labelled the“time-specific disposition rate”. It is simply thepercentage of cases disposed of within a partic-ular period of time. For example, whatpercentage of the cases commenced within aspecific period of time has been disposed ofwithin 3 months of initiation? Within 6months? Within 12 months? How does thiscompare with the percentages for the sameperiods one year or two years ago?

There are a number of advantages to usingthese time-specific disposition rates. Theyprovide a measure of case progress that is notonly more accurate, but is also moreimmediate and timely. If a new case manage-ment process is put in place on January 1,2006, one can calculate a 6-month dispositionrate (that is, the percentage of cases disposedof within 6 months of initiation) by December31, 2006, that will cover half of the total casesfor 2006 (that is, all cases initiated fromJanuary 1 until June 30). In the meantime, onecan sample a comparable group of cases (thatis, the same case types) initiated in the first halfof 2005, and calculate what percentage ofthose cases were disposed of within 6 months.It is therefore possible for example to evaluatethe impact of a Best Practices Court very earlyin its development.

The over-arching principle of judicialindependence has been enshrined in theConstitutions of Member Countries of theCommonwealth as well as international instru-ments such as the Universal Declaration ofHuman Rights (Article 10) and the UN BasicPrinciples on the Independence of the Judiciaryand the Role of Lawyers endorsed by the UNGeneral Assembly in 1985 and 1990 respec-tively. This principle has been reaffirmed by theGovernments of the Commonwealth in theDeclarations since the Singapore Heads ofGovernment Meeting held in 1971 and by theirendorsement of the Commonwealth Principles(Latimer House) of the Three Branches ofGovernment in Abuja in December 2003.

‘The independence and integrity of thejudiciary is...’ to quote the Communiqué of thelast meeting Senior Officials of Law Ministriesheld in October 2004, ‘.... a right of everyCommonwealth citizen.’ ‘Judicial officers havea duty to uphold and defend judicial independ-ence, not as a privilege of judicial office but asthe constitutional right of everyone to havedisputes heard and decided by impartialjudges’ (Principle 3, of the Lesotho EthicalPrinciples for the Judiciary, 2004). As theformer CJ of Zimbabwe, Justice AnthonyGubbay, said in a speech in June 1998, ‘Theindependence of the judiciary should bebalanced with responsible professionalconduct, competence and integrity’.

The extraordinary power invested in thejudicial office demands a high standard ofbehaviour. Perhaps the earliest affirmation ofthe essential values for judicial officers, partic-ularly relevant to Commonwealth judicialofficers, can be found in a 1346 statute, 20Edw.III, c.1:

‘we have commanded all our justices thatthey shall from henceforth do equal lawand execution of right to all our subjects,

rich or poor, without having regard to anyperson and without omitting to do rightfor any letters or commandments whichmay come to them from us, or from anyother, or by any other cause’.

For six hundred years judicial officers havebeen guided by these principles: the commit-ment to uphold the law and to do soimpartially and in an unbiased manner. Thesefundamental principles are affirmed in theOaths of Office which are required of all newjudicial officers throughout theCommonwealth. For example, the Magistratesof South Africa, Oath of Office declares:

‘I, ... do hereby swear [or solemnly affirm],that in my capacity as a judicial officer, Iwill be faithful to the Republic of SouthAfrica, will uphold and protect theConstitution and the Human Rightsentrenched in it and will administer justiceto all persons alike, without fear, favour orprejudice in accordance with theConstitution and the law’.

Cicero, in his letter on the duties of a magis-trate De Officius, identified the followingvalues: affability, dignity, diligence, delibera-tion, integrity, impartiality, propriety,moderation and self restraint. These valueshave been seen as part and parcel of judicialtradition. The ideal being for judicial officers(and by this term I mean both judges andmagistrates carrying out a judicial function) tobase their behaviour on a strong moral codedeveloped through their professionalbackground and through their own socialcontext. However this has always been anideal, and the argument has to be repeated foreach succeeding generation of judges (andindeed administrators) to ensure that a moralcode, which includes independence from polit-ical pressure and social norms, is neverforgotten. As Plato pointed out justice and

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MECHANISMS FOR ETHICAL CONDUCT IN THEADMINISTRATION OF JUSTICE

Dr Karen Brewer Secretary General of the CMJA. An edited version of a paper given at the Pan-African Forumon the Commonwealth (Latimer House) Principles on the Accountability of and theRelationship between the Three Branches of Government, Nairobi, April 2005. Reproducedwith the kind permission of the Commonwealth Secretariat.

morality are ‘inseparable companions.... thebonds of society’.

Judicial officersClearly the qualities required of judicialofficers can be put in danger if judicial officersare not protected from political, economic orother pressures. They cannot however, becompletely isolated from society and keptcocooned from the realities of life.

Recognising the pressures which judicialofficers face today, the problems and issuesthat they might be confronted with, a numberof countries have in the past 10 years, devel-oped mechanisms to inform judicial officers ofwhat is required of them in the exercise of theirfunctions but also to protect the professionfrom disrepute.

Any mechanism ensuring integrity and highstandards must bear in mind the followingmain objectives:

• To uphold public confidence in the admin-istration of justice;

• To enhance public respect for the institu-tion of the judiciary; and

• To protect the reputation of individualjudicial officers and of the judiciary.

Different jurisdictions have adopted differingmethods, in addition to the constitutionalprovisions, to assist in ensuring that the princi-ples of impartiality, independence and integrityare applied by judicial officers. Some havedrafted codes or guidelines, others have soughtto provide training in this area, some haveprovided complaints and disciplinary systemsto ensure ethical standards are complied with.

Codes and guidelinesThe idea of Codes of Conduct or Guidelinesfor Ethical Behaviour are a relatively recentphenomenon. Over the last 20 years or so, theconduct of judges has come increasingly underpublic scrutiny, with a growing interest instandards of judicial conduct. Currently theCMJA is aware of documents in 21 countriesof the Commonwealth which set out theethical standards expected of judicial officers.

There has been much debate as to whether ornot these standards are codes of conduct orcodes of ethics. According to Justice CliffordWallace, ‘Codes of Conduct merely identify

acceptable conduct. They constitute the floorof judicial activity and if a judge goes belowthe base line, the judge is subject to sanction.Ethical goals - they are aspirational - theycause the judge to look up and reach out tomake the judicial career more effective andmore satisfying. For example: not being asdiligent as a judge should be would not beconsidered in a code of conduct the violationof which could result in a sanction’

In the original Latimer House Guidelines,reference was made to the CMJA developing a‘Model Code of Conduct’. However, experi-ence has taught us that we should be wary ofan off-the-shelf model which could be usedwithout due consideration being taken ofnational circumstances and which might beused to discourage more vulnerable judicialofficers from exercising their independentjudgment.

Some jurisdictions, such has Canada andAustralia have developed guidelines ratherthan codes as they feel that they have noauthority to impose ‘prescriptive standards’upon judges. In other jurisdictions judicialconduct has been set out in a parliamentaryAct. In Zambia, for example, the Judicial Codeof Conduct Act 1999 for officers of the judica-ture elaborates on the provisions set out inArticle 91 of the Constitution (‘The Judges,members, magistrates and justices shall beindependent, impartial and subject only to thisConstitution and the law and shall conductthemselves in accordance with a code ofconduct promulgated by Parliament’) anddeals with issues relating to the adjudicativeresponsibilities, extra-judicial activities, finan-cial, political and employment matters as wellas setting out a detailed procedure forcomplaints against the judiciary and breachesof the Act are ‘construed as misconduct to bereported to the [Complaints] Committee foraction’ (s.33(2) of the Judicial Code ofConduct Act 1999).

So what should these Codes or Guidelinescontain? Most Codes or Guidelines includereferences to the basic principles fundamentalto the judicial functions:

• Independence: integrity in both public andprivate life through the respect of the law,prudence in managing financial affairs,openness in declaring financial, family,social connections

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• Impartiality: this means giving carefulconsideration to close relationships andhow these are perceived. Just like theculture of celebrity scrutiny which isprevalent around the world today, judgesare in the public eye and they must becareful about public statements made in orout of court, involvement in extra-curricula activities such as charitableorganisations, community or educationalendeavours and of course special caremust be taken when it comes to politicalactivity. A number of guides expectjudicial officers, to sever on appointmentall ties with political parties (Australia),counsel against making contributions topolitical causes (Canada), or public partic-ipation in political discussions (Lesotho),unless of course these relate to theindependence of the judiciary and thefundamental aspects of the administrationof justice or personal integrity of thejudge. Even participation in commissionsof enquiries can be seen to be controversial(South Africa).

In relation to the functions of the judicialofficer, due diligence, a respect for the law andevidence presented, awareness of cultural andother special requirements of those seekingjustice, and constant vigilance that justicedelayed is justice denied need to be taken intoaccount. In relation to respect for the lawalthough most codes make reference tonational laws, it is interesting to note that onlytwo Codes, those of Belize and the GuyanaCode suggests that judges should keepthemselves ‘informed about relevant develop-ments in international law, includinginternational conventions and other instru-ments establishing human rights norms andwithin any applicable limits of constitutionalor other law, shall conform to such norms asfar as is feasible.’ (Article 6.4 of each Code).

So who should develop these Codes? There is adelicate balance which needs to be exercisedbetween accusations of judicial unaccount-ability and guaranteeing judicial independence.Self-regulation, in some countries has receiveda bad name. However, it is difficult in anyprofession, and in particular the judicialprofession, to accept a set of norms for itsbehaviour, if it does not have ownership ofthese norms. For this to happen there must beinvolvement in the formulation of the set of

standards. An imposed code can be construedas eroding the constitutional and internation-ally recognised fundamental principle of anindependent judiciary. The Latimer HouseGuidelines state that: ‘A Code of Ethics andConduct should be developed and adopted byeach judiciary is a means of ensuring theaccountability of judges’ (Ch.V(1))

The Commonwealth Secretariat’s JudicialColloquium held in Limassol in 2002 recom-mended the adoption of guidelines on judicialethics as a means of underpinning the integrityof the judiciary and promoting better publicawareness of the requisite ethical standards.Such guidelines should be formulated byjudicial officers and kept under constantreview by them. Judicial officers should takeresponsibility for ensuring compliance withthose guidelines. The constant review of theethical codes is essential as society is inconstant change.

TrainingThe CMJA believes that training in judicialconduct and behaviour is essential tomaintaining and developing standards in thejudiciary. Through our training programmeswe supply a structure in which the localjudicial officers can consider, and on occasionrevisit the issue of judicial ethics and conduct,exchange information and experiences asalthough they must remain independent ofmind, the supportive nature of such exchangesis essential to the integrity of judicial officers.In particular systematic training should beavailable for the newly appointed judge ormagistrate with a view to providing the meansto resist that first, perhaps minor, unsuspectedtrap of the corrupt approach.

Commonwealth countries have the advantageof sharing similar legal systems and despite thedifferences that exist, interaction with judicialofficers of all ranks on a national, regional orinternational level is essential to help breakdown the tendency for judicial officers to beisolated and to help guard against the selfdelusion that can arise in a weak man orwoman who is occupying a position of trust insociety. In short every opportunity should betaken to promote a greater degree of colle-giality amongst the whole body of a country’sjudiciary.

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Mentoring and the promotion ofcollegialityThe importance of leadership cannot beoveremphasized. The CMJA believesmentoring and other ways of promoting colle-giality amongst judicial officers especially forthose who are newly appointed in order toensure that they avoid becoming too isolatedand to ensure that they have a colleague toturn to for advice and guidance at times whenthey are subject to an approach which may beequivocal. In performing judicial duties,however, the judge should remain independentof judicial colleagues and solely responsible forhis or her decisions. The exchange of knowl-edge and experience is done in order to betterserve justice.

Complaint and discipline mechanismsIt is the nature of litigation throughout theworld that one party must be disappointed atthe end of any case. Some disappointed partiescomplain about the conduct of the judicialofficer. Although the Appeals system may beused when the judge does not apply the law orfollow procedure, what happens if the judicialofficer does not behave in court as would beexpected?

Most Constitutions in the Commonwealthprovide for the removal of judicial officers atthe higher level and constitutional or parlia-mentary processes (whether throughinvestigation by tribunal, the judicial servicescommission, or other mechanism) must becompleted before the removal of a judge.

The judiciary, being the third branch ofgovernment, is accountable. However,whenever I raise the issue of safeguarding theindependence of the judiciary, the question ofaccountability of the judiciary is alwaysthrown back at me as if these two principlesnullify each other.

In the words of the former UN SpecialRapporteur, Dato Param Cumaraswamy, in aspeech in Sri Lanka in 2003, ‘judicialindependence and judicial accountability mustbe sufficiently balanced so as to strengthenjudicial integrity for effective judicial impar-tiality’

Both judicial independence and judicialaccountability are the sine qua non of democ-racy. However, judicial accountability cannot,especially in Commonwealth countries, be

compared to the accountability of theExecutive or Legislative branches ofGovernment or for that matter other govern-mental institutional as judicial officers arerequired to be independent and discharge theirduties without fear of reprisals or in expecta-tion of any reward and judicial independencecannot be subject to political whim thereforeaccountability cannot be of a political natureor to be seen to be of a political nature.

The UN Basic Principles urge judicial bodies todevelop their own mechanisms for dealingwith complaints and a number of the Codes orGuidelines include mechanisms of dealing withbreaches of the code. Kenya for exampleprovides that ‘Where an officer has committeda breach of this Code, appropriate action willbe taken in accordance with the provisions ofthe Public Officer Ethics Act 2003, JudicialService Commission Regulations or theConstitution, as the case may be’ (Rule 22).

The case of the lower judiciaryThe process for the removal of the lowerjudiciary is not necessarily guaranteed in theConstitution despite the fact that in mostCommonwealth countries, members of thelower judiciary are those that deal with themajority of cases. And yet they are placed in amore precarious situation. Their security oftenure is not always interpreted as guaranteedby the Constitution and therefore they areopen to ad hoc removal from office by amember of the Executive without due processbeing followed. In addition, their career devel-opment is not always undertaken through atransparent system. Judicial officers at thislevel are more prone to be subjects of de facto‘demotions’ due to the decisions they mighttake. Their salaries and terms and conditionsmay be such that they are made more vulner-able to corruption.

In the development of Principles for thejudiciary neither the Commonwealth nor theUN distinguish between these two categoriesof judicial officer. It is interesting to note thatUganda in their recent constitutional case ontaxation of judges at the lower level, have atlast recognised the importance of support forthe lower judiciary in order to assure judicialindependence. In England and Wales, the termsregistrar and magistrate have now beenabolished for professional judges in favour ofthe term District Court Judge, which more

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readily reflects their role and indeed the needto be bound into the judicial ethos.

It is also interesting to note that the perform-ance of judicial officers at the lower level isassessed more rigorously than those at a higherlevel of the judiciary as their judgments aresubject to the appeals system. As one goeshigher up the judicial echelon one finds thatthe Appeal Court judges are not subject tosuch assessment except perhaps in casesreferred to Regional Courts such as theEuropean Court of Human Rights or the EastAfrican Court, or in cases referred to the PrivyCouncil but the latter are fast diminishing. Notall cases brought before the Court of Appealhowever carry a right of appeal to suchregional courts.

Ethical standards apply to all members of thejudiciary. Support for the lower judiciary bythe higher judiciary and true leadership fromthe highest ranks ensures high ethicalstandards throughout.

Other players: court staffIn a number of Commonwealth countries thereis a widespread perception that the legalsystem is corrupt. Transparency International’sIndex lists many of the Commonwealthcountries as being those perceived to be worstoffenders. There are particular problems inapproaching complaints against judicialofficers. Firstly the allegation may not in factrelate to the judicial officer, but to a clerk oradvocate, perhaps wrongly, claiming to beacting on his behalf, secondly the allegationitself may be mischievous, designed to under-mine the integrity of an honest public servant.The very making of the allegation neutralisesthe judicial officer and makes it impossible forhim or her to preside over any relevant case,possibly bringing about the result sought bythe complainant.

In a number of instances, judicial officers andcourt staff may come under separate depart-ments and ministries and judicial officers maynot always be aware of the pressures to whichcourt staff are subject. It is sometimes difficultto separate out the administrative and judicialfunctions. In a number of jurisdictions, courtadministrators are taking on more judicialfunctions (such as how much should be paid ofon fines and what sanctions should imposedfor non-observance of court rules) or judicial

officers, especially those at a more senior levelare being required to take on more administra-tive functions. There needs to be a clearseparation of what is considered to be anadministrative function as opposed to ajudicial function. The CommonwealthColloquium held in Limassol in 2002,concluded that more emphasis needed to beplaced on liaison with court staff and othersinvolved in the administration of justice.

It is therefore essential that a holistic approachbe adopted in implementing mechanisms tostrengthen ethical conduct and that all thoseinvolved in the administration of justice aresubject to the same scrutiny as far as ethicalbehaviour is concerned. A number of jurisdic-tions now have codes of conduct for publicservants and apply these to court staff. In somejurisdictions, for example some parts of theUSA, court employees have been given theirown codes of conduct.

The CMJA has recognised that court adminis-trators are have an important role to play insupporting judicial independence and it iscurrently considering setting up a CourtAdministrators Section and has volunteered toassist the Commonwealth Secretariat with acode of conduct for court administrators.

LawyersDato Dr Cyrus Das, former President of theCLA pointed out in an address in 1998 that‘lawyers are vital cogs in the machinery ofjustice and unless there is an independent Barready and willing to defend the right so thatare guaranteed in society, there cannot truly besaid to be freedom and the rule of law’.

In the same way that there should be ethicalguidelines for judicial officers, the legal profes-sion needs to be aware that their independenceand impartiality is based on ethical conduct.Just as codes of conduct now exist for judicialofficers, the last 50 years have seen the devel-opment of codes of conduct for lawyers whichset out the basic principles of accepted behav-iour. The International Bar Association’sInternational Code of Ethics for Lawyers,although applying to the relationship betweenlawyers working in different jurisdictions, is asapplicable domestically as internationally. Forexample, Rule 2: ‘Lawyers shall at all timesmaintain the honour and dignity of theirprofession. They shall in practice as well as in

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private life, abstain form any behaviour whichmay lend to discrediting the profession ofwhich they are a member....’ and Rule 6:‘Lawyers shall always maintain due respecttowards the court’.

It is said that a strong legal profession makes astrong bench, A legal profession that behaveswith honour and dignity can support judicialofficers in dispensing justice in a fair andindependent way.

The mediaSometimes public comment on judicialconduct has been influenced by false notions ofjudicial accountability which fail to recognisethat a judge is primarily accountable to thelaw, which he or she must administer, in accor-dance with the terms of the judicial oath ,‘without fear or favour, affection or ill-will’.

This does not mean that judicial officers aretherefore entitled to use contempt of court as ameans of fighting the media. Justice Belgore ofNigeria stated in 1989:

‘Contempt of court is a very powerfulweapon in the hand of the courts and thatis why care must be taken in publishingwhat is regarded as public interest so asnot to fall into the ambush of contempt ofcourt. There should be no judgement bygeneral acclaim of the public whipped upby the press. The Judge should be allowedto judge solely on the evidence before himand the law applicable.’.

At the same time he does stress the importanceof the rule of sub-judice which seems to bebeing eroded in some parts of theCommonwealth including England and Wales:

‘The function of the press as the watchdog ishonourable and demands the highest degree ofresponsibility. The function of finding guilt ofcrime against a citizen is that of the courts.

When the courts are available and functioning,no citizen shall be tried on the pages ofnewspapers. Court is the forum for trying aperson and once a matter is before the court,care must be taken so as not to prejudge theIssue on pages of newspapers.’

ConclusionThe international principles of human rightsmay promise that the judge shall be competent,independent and impartial. But in manycountries, especially in the lower judiciary,ethical behaviour may leave a great deal to bedesired.

The primary responsibility for decidingwhether a particular activity or course ofconduct is appropriate rests with the individualjudicial officer. When they accept the appoint-ment, they accept the restraints imposed onthem. As we have seen there are numerousways of ensuring ethical conduct in the admin-istration of justice whether through judicialcodes or guidelines, training or other mecha-nisms. Ensuring that the appointments systemsare transparent and based on merit notimproper considerations, that the terms andconditions of service are adequate to avoidexposure to corrupt practices, that judicialofficers and court staff are aware of theirrespective roles, these are the essentials forgood justice.

The Commonwealth (Latimer House)Principles state that ‘An independent, impar-tial, honest and competent judiciary is integralto upholding the rule of law, engenderingpublic confidence and dispensing justice’. It isour right as citizens to ensure that the judiciaryis not only de jure but also de facto therespected third pillar of democracy.

SUSTAINING AND ENHANCING THE DEMOCRATICDIVIDEND IN COMMONWEALTH AFRICA

Richard NzeremLLB, LLM (Director, Sir William Dale Centre for Legislative Studies, Institute of AdvancedLegal Studies, University of London; former Director, Legal and Constitutional Affairs Division,Commonwealth Secretariat).

The aim of this paper is to consider some of theways in which the Commonwealth hascontributed to the cause of good governanceand human rights. It will also consider whatrole it would be reasonable to expect thejudiciary can play in advancing the cause ofgood governance in Commonwealth Africa inthe bumpy years that lie ahead. As will becomeevident, any such expectation could bemisplaced. This is so especially against thebackground of the complex milieu of develop-ments now taking place and likely to continueto take place in global governance.

The profound array of changes that havefollowed in the wake of globalisation has madeit imperative that policy makers and govern-ments reconfigure their calculations of the waysociety should be governed. Faced with thesesame changes the judiciary, as the acknowl-edged custodians of the law, have a compellingduty and a special responsibility that challengeit to find effective responses, within the param-eters of the law, to the perceived excesses ofglobalisation.

The issue is not whether, because of the eventsthat have taken place especially over the last50 years or so, Commonwealth Africa shouldbe written off as beyond the pale. Rather thequestion should be whether because of thesame events, there is a perception thatCommonwealth Africa is, indeed, beyond thepale and therefore requiring ‘special’ treat-ment? Good governance purists would arguethat there are ample grounds to justify such aperception but that argument could only besustained if one took a short term view of thehistorical and political matrices that havedriven events during this period.

Democratic balance sheetOn the one hand, there is a significant, if notcompelling, matrix of living historical fact toconsider - eighteen of the 53 countries that

constitute the Commonwealth Association arefrom the African region and all of them, exceptSouth Africa, gained their sovereign independ-ence during the last fifty years. (This excludesZimbabwe which withdrew from membershipat the Commonwealth Heads of GovernmentMeeting held in Abuja, Nigeria in December2003.) The democratic balance sheet for manyof these countries over this period, howeverone defines democratic governance, is notsomething to be particularly proud of and inlarge measure has been, at best, a mixed one.

For a greater part of the 50 year period, fromabout the middle of the 1960s until about themiddle of the 1990s, the Commonwealth wasunder sustained criticism, some would say justi-fied, for turning a blind eye to the poor humanrights record of some of its members and forbeing soft on the dictatorships among them.

The truth of the matter, however, is that farfrom the principles and declarations beingmere rhetoric, the Commonwealth, whenpersuasion seemed to have failed, has actedwhen necessary. It has acted to isolate or toexclude its unrepentant or recalcitrant membercountries. Examples that immediately spring tomind include South Africa and Nigeria both ofwhich, after many years in the internationalpolitical wilderness, are again playing promi-nent roles in Commonwealth affairs.

Evidence, if any was required, of the measureof success that the Commonwealth can claim ithas achieved in remaining relevant to a modernworld is that in the last decade of the 20thCentury, when there were growing doubtsabout the usefulness of the Commonwealth, nofewer than nine of its member countries wereeither one party states or were ruled bymilitary dictatorships. The Commonwealthwas then criticised for inaction and not beingfaithful to its principles by ignoring the poorhuman rights record of some of its members.Regimes that represented essentially only

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narrow ‘minority’ rights and interests and hadusurped the power of the state to suppress therights and interests of other groups who oftenconstituted the majority were allowed toremain as members.

In the event, before the turn of the century, theone party states and military regimes had allbut disappeared. The Commonwealth demon-strated its ability to redeem itself. The relentlesschant of the mantra of good governance, of theneed for open, just and accountable govern-ment began to strike a more responsive chordamong its membership. Government by decreebegan to be seen as no more than an unfortu-nate aberration and a mere footnote in thehistory of the countries concerned in particularand for the Commonwealth in general. TheCommonwealth proved that it has the capacityto renew itself not only by bringing to bearsustained pressure on countries where therehave been substantial breaches of human rightsbut also by making itself a sufficiently attractiveorganization to new members who saw thebenefits of membership. In 1995 theCommonwealth broke new ground by admit-ting two new members even though they didnot even have the usual traditional ties with theCommonwealth to qualify for membership:Cameroon, largely French speaking and amember of ‘La Francophonie’ andMozambique, a Portuguese colony until itsindependence. Ironically, the two new memberswere admitted at the same meeting at whichNigeria was suspended from membership.

Much of the Commonwealth’s commitment todemocracy and the practice of democratictraditions can trace its origins to the HarareCommonwealth Declaration of 1991 and itsless well known and less often cited andprecursor – the Singapore Declaration (1971).The later Declaration set the tone for theprinciples that underpin the Commonwealth,acceptance of, and commitment to, which havecome to be recognized as the main conditionsfor admission to membership and to remain asa member.

Harare Commonwealth DeclarationWe would do well to remind ourselves of theessential message of the Harare Declaration.At Harare in 1991, Commonwealth Heads ofGovernment reaffirmed their commitment tothe Declaration of Commonwealth Principlesfirst set out by their predecessors some 20

years earlier in Singapore. But in the HarareDeclaration they went further to set out newCommonwealth priorities for implementingtheir commitment to the principles of democ-racy, good governance and human rights,sometimes referred to as the fundamentalpolitical values of the Commonwealth. For thefirst time, adherence to these principles becamea requirement for admission to membership aswell as a potential reason for invokingsanctions or suspension if they are breached.

Among the principles to which theCommonwealth Heads rededicated themselvesare:

• acceptance of the liberty of the individualunder the law, equal rights for all citizensregardless of race gender, colour, creed orpolitical belief, and in the individual’sinalienable right to participate by meansof free and democratic political processesin framing the society in which they live;

• recognition of racial prejudice and intoler-ance as dangerous threats to healthydevelopment, and that racial discrimina-tion is an unmitigated evil; and

• opposition to all forms of racial oppres-sion, and a commitment to the principlesof human dignity and equality.

Following the reaffirmation of these principles,Governments pledged themselves to ‘workwith renewed vigour in the area of the protec-tion and promotion of the fundamental andpolitical values of the Commonwealth’. Thesefundamental values embrace democracy,democratic processes and institutions withoutwhich the values become empty slogans.

Milbrook Action Programme By 1995, however, it became apparent thatnotwithstanding the strengthened fundamentalprinciples reaffirmed by the HarareDeclaration, there was no monitoring orenforcement mechanism in place to ensurecompliance. At their Auckland, New Zealand,meeting in 1995, Commonwealth Heads ofGovernment decided to strengthen further thefundamental principles by adopting theCommonwealth Millbrook Action Programmein order to fulfill more effectively the commit-ments restated and reaffirmed in the HarareDeclaration. The programme placed a contin-uing obligation on the Commonwealth

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Secretariat and member countries in a numberof important areas. More importantly it estab-lished the Commonwealth Ministerial ActionGroup (CMAG) which it charged withassessing the nature of any infringement of anyof the principles. The Group was empoweredto recommend measures for collective actionthus making the principles a veritable bench-mark against which the activities ofgovernments are to be measured and to ensurethat they are Harare principles compliant.

Notwithstanding these developments, criti-cisms continued to be made that the monitoringarrangements were inadequate to address theissues that confront the Commonwealth, thatthe Commonwealth fundamental principles aremerely aspirational and vague and that thevalues they entrench are not universal.However, these criticisms overlooked a veryimportant fact. They overlooked the fact thatthe principles and declarations were neverintended to codify human rights standards forthe Commonwealth or to replace the maininternational conventions to which mostCommonwealth members have alreadysubscribed. These include the InternationalCovenant on Economic, Social and CulturalRights and the International Covenant on Civiland Political Rights as well as a number ofother regional instruments such as the AfricanCharter on Human and Peoples Rights

The Harare Commonwealth Declaration wastherefore, in a sense at least, a way of theAssociation giving notice to all its membersthat it means business. By attaching humanrights conditions to membership, theCommonwealth showed the seriousness of itsintention to act on its principles and to expectmembers to be Harare Declaration compliantat all times. It was for this reason that afterFiji’s withdrawal from membership in 1987, itwas not allowed to rejoin until it had amendedits Constitution to remove the discriminatoryprovisions against Fijians of Indian descent.Similarly, South Africa was readmitted onlyafter it voluntarily agreed to dismantleapartheid and to end minority rule.

The clear message of the Declaration was thatif democracy means anything it is essentiallyabout choice - choice of political parties,choice of policies, and choice of personalities.The meaning of the message was that freedomof choice would be empty and meaningless

without free elections. Free elections in turnentailed freedom of speech and of association.Without freedom of speech, the appeal toreason cannot be made. Without freedom ofassociation, meaningful political parties arepractically inconceivable. This is because in theabsence of freedom of association it would bedifficult for people to band together intoparties that would be able to formulate policiesto pursue common ends. It would be farcical insuch a situation to speak of people partici-pating freely in national elections for thepurpose of electing their leaders. It would notbe too presumptuous to claim that none ofthese freedoms can be secured without the ruleof law and the independence of the judiciary.

Election monitoringTo demonstrate the earnestness of its intentionto follow up on its good governancepronouncements the Commonwealth throughthe Commonwealth Secretariat, the mostvisible symbol of its existence as an organisa-tion, put its money where its mouth lay. It didso by putting substantial resources intosending election observer missions to manyCommonwealth countries that wished to puttheir democratic credentials beyond doubt.That there is a prevailing perception that inter-national election observers only go to countriesthat cannot be trusted to organize ‘free andfair’ elections may come as no surprise toanyone. This perception has developed aroundit a ring of authenticity which seems to haveworked to good effect. In recent times, anydeveloping country that fails to open itselectoral process to especially outsideobservers is automatically suspected of havingsomething to hide. There can be little doubtthat between 1990 and 2003, theCommonwealth has gained from its record ofhaving sent many observer missions to observeelections, both national and local elections inmany parts of the Commonwealth includingpractically all the member countries in theAfrican region. By 2003, no fewer than 20such observer missions had been sent by theSecretary General, always at the request of thegovernment of the country concerned and afterappropriate consultations. The mandate of theobservers makes it clear that they serve in theirindividual capacities and not as representativesof their governments or the Secretary General.

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Commonwealth Secretary General’s roleThe main objective of the Milbrook ActionProgramme is to ensure that when a membercountry violates the Commonwealth’s funda-mental political values as elaborated in theHarare Declaration, and in particular in theevent of an unconstitutional overthrow of ademocratically elected government, appro-priate steps can be taken by the SecretaryGeneral. Millbrook empowered the SecretaryGeneral to express the collective concern of theCommonwealth countries and to encouragethe restoration of democracy in the countryconcerned within a reasonable time frame. Theraft of steps that the Secretary General cantake include:

1. the immediate public expression by theSecretary-General of the Commonwealth’scollective disapproval of any suchinfringement of the Harare principles;

2. early contact by the Secretary-Generalwith the de facto government followed bycontinued good offices and appropriatetechnical assistance to facilitate an earlyrestoration of democracy;

3. encouragement of bilateral measures byMember countries, especially those withinthe region, both to express disapproval andto support early restoration of democracy;

4. appointment of an envoy or a group ofeminent Commonwealth representativeswhere, following the Secretary-General’scontacts with the authorities concerned,such a mission would be beneficial in re-enforcing the Commonwealth’s goodoffices role;

5. stipulation of up to two years as the timeframe for restoration of democracy wherethe institutions are not in place to permitthe holding of elections within amaximum of six months afterwards;

6. pending restoration of democracy, exclu-sion of the government concerned fromparticipation at ministerial-level meetingsof the Commonwealth, includingCHOGMs;

7. suspension of participation at allCommonwealth meetings and ofCommonwealth technical assistance ifacceptable progress is not recorded after aperiod of two years; and

8. consideration of appropriate further bilat-eral and multilateral measures by allMember sates (such as limitation ofgovernment-to-government contacts andpeople-to-people measures; trade restric-tions; and, in exceptional cases,suspension from the association), toreinforce the need for change in the eventthat the government concerned chooses toleave the Commonwealth and/or persistsin violating the principles of the HarareCommonwealth Declaration even aftertwo years.

There can be little doubt that the imposition ofany of these measures or a combination ofthem would cause considerable disruption totheir political, diplomatic and economicrelations of any member state that finds itselfat the receiving end of any of these measures asmember states that, for whatever reason, haveexperienced suspension of their membershipwould testify.

The CMAGAt the heart of the mechanism for the imple-mentation of the measures just listed is theCMAG described above. It operates, in effect,as the Commonwealth’s ‘trouble shooter’ todeal with serious or persistent violations of theHarare principles. The Group is convened bythe Secretary-General and comprises theForeign Ministers of eight countries, supple-mented as appropriate by one or twoadditional ministerial representatives from theregion concerned. The Group’s task is to assessthe nature of the infringement and recommendmeasures for collective Commonwealth actionfor the speedy restoration of democracy andconstitutional rule.

For entirely understandably reasons, CMAGconfined its remit to Commonwealth countriesthat were under military rule at the time of itscreation in 1995, namely Nigeria, the Gambiaand Sierra Leone. Nigeria was suspended fromthe Commonwealth by Heads of Governmentfollowing the execution of Ken Saro-Wiwa andhis associates by the military government. Thesuspension was maintained by Heads ofGovernment at their meeting in Edinburgh inOctober 1997, ‘pending the completion of acredible transition to democratic civiliangovernment and compliance with the HarareDeclaration’.

At a very practical level in addition to theelection observer missions and the activities ofCMAG, the Commonwealth Secretariat alsoorganised or funded parallel programmes thatwere designed to promote, consolidate anddeepen the democratic process in membercountries. It held a series of regionalworkshops on access to justice in which repre-sentatives of many NGOS active in the field ofhuman rights were funded by it to participate.At another level, it collaborated with thejudiciary and other Commonwealth NGOS inorganizing judicial colloquia to promote thedomestic application of international humanrights norms. It also actively supported thelaunching of what has come to be known asthe Latimer House Guidelines the main thrustof which is to promote peaceful coexistencebetween the institutions of governance withinthe state in particular the three main branchesof government namely parliament, the execu-tive and the judiciary, and to encourage mutualrespect for each other’s constitutional positionin their sometimes frosty relations.

The judicial colloquia and the programme ofworkshops on access to justice spawned a raftof statements and restatements of principleswidely acknowledged within theCommonwealth as underpinning democracyand good governance. Commencing in 1988with the Bangalore Principles developed at thecolloquium held that year in Bangalore andwhich have been elaborated, refined andrestated at subsequent colloquia in differentparts of the Commonwealth, these principlestogether with the 1992 Lusaka Statement onGovernment under the Law and their restate-ments at subsequent workshops collectivelyhave had the effect of extending the traditionalboundaries of the rule of law in many devel-oping Commonwealth countries.

In practical terms, what has been achieved is amore purposeful intervention of administrativelaw in governance issues. It has also resulted ina much wider use of the process of judicialreview to check the more flagrant excesses inthe use of executive power in many common-wealth countries.1 The Lusaka Statement onGovernment under the Law itself has beenendorsed by Commonwealth Law Ministers asencapsulating the hallmarks of democraticgovernance, which the citizens of anydemocratic society are entitled to expect andwhich they pledged to encourage their govern-

ments to put into practice.2 This has been aparticularly welcome development, perhapsnowhere more than in Commonwealth Africawhere the unconstitutional overthrow ofdemocratically elected governments especiallyby the military is no longer considered to bethe fashionable alternative to bad civiliangovernment that it once used to be.

The Latimer House GuidelinesIn typical Commonwealth fashion, the LatimerHouse Guidelines have been the subject ofconsultation within the various stakeholderorgans and organizations in the state andbetween them collectively. Recently in April2005 representatives from the Executive, theJudiciary, the Legislature and Commonwealthcivil society organizations from all the 18Commonwealth countries in Africa met in aforum held in Nairobi, Kenya, under theauspices of the Commonwealth Secretariat andthe Kenya Government to consider ways andmeans of promoting and advancing theLatimer House Principles. Significantly, amongthe topics that the Forum considered aspossible ways and means of promoting andadvancing the Principles were the following:

1. examining ways of strengthening andreforming the institutions for fightingcorruption

2. encouraging and exploring new ideas forsustaining (good) governance inn order toreduce poverty and promote human rightsand gender equality

3. encouraging strategic partnershipsbetween government and non-govern-mental organisations and civil society inpromoting and protecting ethical gover-nance, accountability and the rule of law.

The Forum noted that the effective implementa-tion of the Principles calls for commitment ofthe relevant national institutions, in particularthe Executive, the Parliament and the Judiciary,to the essential principles of good governance,fundamental human rights and the rule of lawso that the legitimate aspirations of the peoplecan be satisfied. It welcomed wholeheartedlyalternatives to formal procedures and agreedthat Commonwealth Africa needs to constructnew ways of pursuing a human vision of justice.The Forum welcomed such alternatives becauseof the failure of the old traditional approachesthat were designed to guarantee effective access

28

to justice. In this regard, the Forum addressedthe issue of the cost and delay of justice withinthe formal legal system and suggested thatcourts which use simple, informal and speedyprocedures should be established to reducedelay and costs. The establishment of suchcourts and adoption of such procedures wouldin no way be an exceptional development. Onthe contrary, it would be borrowing a leaf fromdevelopments in other parts of theCommonwealth, notably the Indian subconti-nent where the Indian Supreme Court, throughits epistolary jurisdiction was able to temper thehardships suffered by indigent and helplesslitigants in a way that is reminiscent of the waythat equity tempered the harshness of commonlaw during the early years of the development ofthe English legal system.

The judicial roleEarlier in this article, I suggested that, facedwith the array of challenges inherent in global-ization, the judiciary have, as theacknowledged custodians of the law, acompelling duty and a special responsibility tofind effective responses to today’s problemswithin the parameters of the law.

The judiciary, in most of CommonwealthAfrica which subscribes to the common lawtradition, has in its armoury a vast array ofremedies that, with creative construction andboldness, it could deploy to promote the causeof good governance. An activist, independentand fearless judiciary supported by an equallyindependent and fearless legal profession could,between them, ensure that the democraticdividend that has been painfully won duringthe last decade is sustained and, unquestion-ably, could contribute to enhancing it.

One area of profound concern inCommonwealth Africa that has not onlydamaged the integrity of the institutions ofgovernance but also their ability to contributemeaningfully to development is rampantcorruption within their ranks. Unfortunately,the judiciary cannot claim that it is exempt

from this damning indictment. Governmentsand Legislatures, if they show the will toseriously commit themselves to their respectiveduties, have it within their constitutionalpowers to enact appropriate legislation to dealeffectively with corruption. This could includereversing the onus of proof where, for instance,a public official has acquired property thatcannot be accounted for and that is demon-strably way beyond the means that theofficial’s known legitimate sources of incomecan support.

Governments have it within their legitimatepowers to establish effective mechanisms thatare capable of bringing to book especiallythose who perpetrate grand corruption andinflict serious fraud on the public treasury. Thejudiciary, for its part, would do well to under-take or to instigate the institution of wholesalejudicial reform that would inspire attitudinalchanges so that it can have the courage to holdthe scales of justice between the citizen and thestate and be able to dispenses justice withoutfear or favour.

Study after study has established that there is adirect causal link between corruption and badgovernance and that one of the most damagingand debilitating consequences of corruption isthat it distorts development and preventssociety from reaping its just rewards from thedemocratic dividend. A fearless andindependent judiciary that deals harshly withthe perpetrators of such crimes against thepublic weal would have the full weight ofpublic support behind it.

Endnotes1 For an examination of the role of administrative

law in government see ‘Good Government andAdministrative Law – An Introductory Guide(1996), by Professor Bradley and MrHimsworth published by the CommonwealthSecretariat, pp. 1-10.

2 For the text of the Lusaka Statement onGovernment under the Law see GoodGovernment and Administrative Law – AnIntroductory Guide (1996), p. 36 et seq.

29

Although everyone may agree as to whatjudicial education is, I am not sure that therewould be the same level of agreement inrespect of judicial reform. I would definejudicial education as being a programme orseries of programmes for judicial officerswhich has the aim and purpose of improvingtheir abilities to carry out their independentconstitutional role. In my view, everythingbuilds from my judicial oath and any effectivejudicial education has to be such as to improvemy ability to carry out my role in accordancewith that oath. But “reform”, and especially“judicial reform”, is a more slippery andsubjective term – what to some may be ajudicial reform may seem to others to be a stepin the wrong direction. The Oxford EnglishDictionary’s definition of “reform” is “theamendment or altering for the better of somefaulty state of things, esp. of a corrupt oroppressive political institution or practice”.The definition carries an implication of therectification or improvement of something thatis wrong. Without being complacent there maynot always be a need for reform in a particulararea. There is no point in reform just for thesake of reform, something which politiciansseem to be often keen on.

Judicial reform can be a difficult area, and itseems to me that before identifying any suchreform, it is doubly important that we firstidentify what needs to be amended orimproved, then decide on the nature of thenecessary reform, and whether the reform andthe problems that it may bring about areproportionate to the problem it addresses, andif so finally identify how judicial education canbe used to promote that reform. We shouldalso ask how far it is right to keep judicialreform to ourselves. This is difficult: but whyshouldn’t a representative of the people weserve, and whose taxes pay our wages,democratically elected, not have a voice in ourreforms processes? If so, how loud a voice? Ipose these as questions for discussion.

Whatever the answers I hope that we can agreethat judges should be the “driving force”.

Judicial educationJudicial education itself is the central judicialreform that has taken place over the last fewyears. This is certainly an area where I can saywith confidence that reform was needed inEngland 25 years ago. The establishment andacceptance of residential judicial educationprogrammes, both for newly appointed judgesand magistrates, and refresher courses forthose already on the bench, through ourJudicial Studies Board has been a very impor-tant reform. Although England cannot claim tohave been in the vanguard, this has been thecentral judicial reform of the last twenty fiveyears throughout the Commonwealth.

I note looking back at the programme on theCMJA’s first full conference, in Bermuda in1972, that it included papers and discussionsessions on family law, sentencing, delays, drugproblems, and judicial independence. It wasquite novel then to have had such programmesand such discussions.

The CMJA was at the front of the field inpromoting the judicial reform that has beenjudicial education. Judicial education is one ofour constitutional aims, and the aim withwhich it has had the greatest success. If afundamental object of a judicial educationprogramme is to give judicial officers anopportunity to get together to learn aboutsome aspect or another of their craft, then thisAssociation has been in the fore in demon-strating how this can best be done. It has beenour aim throughout our history to give oppor-tunities for groups of judicial officers ofdiffering rank and from differentCommonwealth regions to discuss commonissues together, without regard, save that ofproper respect, for judicial rank. This can bedifficult to achieve. We now try it at theJudicial Studies Board in England, but notalways successfully. I am sure that we are not

30

CONTINUAL JUDICIAL EDUCATION AND JUDICIALREFORM

His Honour Judge Keith HollisDirector of Studies, CMJA; a paper at the Accra conference

alone in finding that on occasions the morejunior can be too coy, whereas the more seniorcan be overbearing (although there are timeswhen the converse is true, although it may behard to imagine; even Lords Justices of Appealcan on occasions be shy and retiring, and evenDistrict Judges or magistrates can beoverbearing and truculent).

This has been a fundamental judicial reform.The previous unsatisfactory, often nonexistent, training of judicial officers both in thelaw itself and in what I would call “judgecraft”has been “improved or altered for the better”by the establishment of judicial trainingprogrammes. I would add that a recent aspectof judicial education has been the workingtogether of judicial education institutes ofdifferent countries, to share experiences andpromote best practices internationally. This isan exciting development which I believe wewill be seeing more of in the coming years and,as with the CMJA’s work, help each of us tohave a global perspective on our role, howevermodest it may seem locally.

The nature of judicial educationSome form of judicial training is now accepted– I hope universally – as something that is ofvalue to both judges and magistrates, to allthose who carry out some form of judicial role.Not long ago, certainly in my time as a lawyer,it would have been thought a rather odd ideathat judges may need to be taught law. Evennow some of my neighbours seem surprisedwhen I tell them that this happens. I am notsure that it was originally intended that acentral purpose of judicial education would bethe learning of the law: but we cannot rely onthe cases we hear being conducted by wellqualified and experienced advocates who canensure that we have the law clearly set beforeus. I doubt if this was ever really the case savein the more refined areas of the superior courtsin metropolitan centres. It has become increas-ingly the case in the United Kingdom (and Ihave no doubt elsewhere) that judicial officers,at every level, have to rely on their own knowl-edge and researches of the law in coming totheir decisions. In our civil courts now, as Ibelieve in yours, many of the litigants areunrepresented and rely on the judicial officer toknow the law that is applicable to the case.The law by its nature becomes more compli-cated.

I quite recently heard a claim between twobusinesses. Neither party was represented orhad sought any legal advice. Both were repre-sented by directors, few facts were at issue, butthere were some knotty legal points to decide.The whole hearing was remarkably amiable.At its conclusion I was thanked by both direc-tors who then told me that they had broughtthe case to court to get a decision on the legalpoints as this would be much easier andcheaper than them both separately taking legaladvice, it would also, at least they had hoped,be conclusive and to the point. Increasinglyjudges find themselves being put in thisposition. We have to know our stuff, haveconfidence in our knowledge, and not rely onour appeal courts to put us right when we getit wrong.

The Judicial Studies Board in England andWales is now facing the challenge of taking onresponsibility for the training of our lay magis-trates. For the first time it will be helpingjudicial officers without the advantage of alegal background. In other countries, such asthose of West Africa, there are also juniorjudicial officers who have the need to build onwhat may be quite limited basic training.Whatever our background, we share incommon a need for lectures on “black letter”law, on new laws as they are introduced andrefreshers on developments in the law gener-ally (which may well include developmentsfrom other common law jurisdictions and ininternational law). We should involve in thisour academic colleagues. Their efforts in theU.K. are greatly appreciated. They have a greatdeal to contribute, especially in the develop-ment of the common law, in drawing ourattention to flaws & inconsistencies in judicialreasoning.

Also judicial training helps to develop a degreeof consistency in the application of the law:this is especially so when the training may be inprocedural matters, or where politicians,ducking the nuts and bolts of their declaredpolicies, pass legislation that relies greatly onjudicial discretion. This is best achieved byhaving dummy scenarios of cases discussed bygroups in syndicates. The recent progress inmany jurisdictions, including my own, injudicial case management both in civil andcriminal jurisdictions could not have effec-tively happened without such training. Theestablishment of judicial case management has

31

been the second great judicial reform, afterjudicial training, that I have seen in my ownjudicial career to date.

Contextual education for judicial officersA recent aspect of judicial reform and judicialeducation relates to work being done topromote awareness amongst judicial officers of“social context”, of an awareness of theapproaches to life of people whose backgroundand ways of life may be different to that ofjudges and magistrates generally. This is amore difficult area, the purist may say (indeedI have said it), that as judges we need go nofurther than our judicial oaths. I can under-stand, although wouldn’t agree with, thereasons why that argument would have hadmore force in England 50 years ago whendiversity in society was almost exclusivelydefined in terms of social class. But the U.K.has had to follow jurisdictions that have had agreater experience of being a melting pot ofdifferent races and religions, in promotingamongst its judges knowledge of the differingways of and approaches to life by differentgroups in the societies that we serve. In theU.K., we have made a tentative (and in myview halting) start, with training on racialawareness issues, and it is not a big step fromthat to having training on other social contextissues, for example on the position of womenin society, minority groups, sexuality.

Other jurisdictions give a lead in this. Just togive one example from many, I know of the“Jurisprudence of Equality” programme thathas been run in Tanzania on gender issues,specifically domestic violence, and there arevery many others. In a paper she gave last yearChief Justice Beverley MacLachlin of Canada,describing the steps that were being taken inher jurisdiction to promote social contexttraining for judges, said that such training wasvital as the “judge must be the one who under-stands every voice”, and at the same meetingJustice Claire L’Heureux-Dube made the pointthat “contextual enquiry is an attempt toattack the problem of privilege and to under-stand the diversity of people’s experiences”, amore radical take on the same issue.

But we must be cautious. Judicial training isonly a part of the solution to these problems, itis too heavy a burden for judicial training aloneto take on. It is more important to ensure thatour appointments procedures do not exclude

men and women from unexpected backgroundswho are otherwise qualified. Anyway it may beimpossible for any judge, however well trained,to understand every voice, and we shouldbeware of engendering false confidence, a greatproblem in the past. There is a limit to whatjudicial training in this area can do, although Iaccept that it can help the judicial officer havea better awareness of the limits of his or herown knowledge, and thus has a role in puttingour humanity better in touch with thehumanity of those who are in court before us.This helps us to better fulfil our judicial role inaccordance with our oath and to play our partin ensuring that groups in society, traditionallymarginalised by legal or social structures, arenot victimised and further marginalised as aresult of judicial ignorance or insensitivity. Ithas been said that democracy is the least worsesystem of government that there is. The state-ment too, that there has never been a famine ina universal democracy is, surprisingly, true. Butdemocracies need to protect and nurtureminority voices, and social context training canhelp us play our role in this.

There is another “contextual” area wherethere has been judicial reform and where theremay be a need for more judicial training. Theestablishment of specialist courts has been awelcome reform, for example drug treatmentcourts, commercial, employment, and environ-mental courts. How far does this reform carrywith it a need to have specialist training, andhow far should that training go? As anexample, commercial courts are now common,but judicial experience in commercial mattersis not. Should judges be encouraged topacquire this? I suspect that some of the diffi-culties we have experienced in England overcivil procedure reforms arise from judicialmisunderstanding of why many commercialenterprises, especially insurance companies,litigate. Should we go as far as appointingM.B.A.s to such courts? How would this befunded? Such training is contextual trainingtoo, perhaps no less valid than social contexttraining. If the economic progress and stabilityof our communities are dependant on thesuccess of our commerce then the judicialofficers who enforce the rules of commerceneed to understand the realities of the commer-cial world in order to make their contributionto that success – “the judge must be the onewho understands every voice”.

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Particular caution is needed to ensure that anycontextual training is not promoting somepolitical or other “agenda”. But providing it iskept under the control of the judiciary, itslimitations are understood, and it is notallowed to be used as a means for outsidegroups to promote special interests, thencontextual training, as I am widely defining it,should be a valuable help in our work. It canhelp bring about a better informed judiciary ofa more consistent quality, which is more sensi-tive to the social milieu of those they arejudging.

ConclusionWe should always bear in mind that judicialtraining of any sort comes at a price. Not justin the provision of the training itself but in thecost of taking judicial officers away fromcourts, causing delays. While it takes place, theaccused are lanquishing in prison longerawaiting trial, witnesses are forgetting whathappened, our courts are empty. Both thedirect financial cost, and the indirect cost in itscontribution to delay are areas which givepotential levers to others to exert pressures onour independence. We should always bear thisin mind and ensure that our programmes areworthwhile in content and that the costs arenot extravagant. Judicial training can andshould be kept simple, without expensive

premises and large and unnecessary bureaucra-cies to support it.

This note of caution, and the mention of themore controversial contextual training, bringsme back to the original main concern aboutjudicial education – the risk that it may under-mine our judicial independence. We mustalways be alert to those concerns. Succeedinggenerations of judicial officers have to pass onthe torch of independence and ensure thatsucceeding generations of politicians andadministrators are aware that it is being passedon and that it still burns brightly. The promo-tion of judicial reform through judicialeducation underscores the importance of allsuch matters being under the leadership of theChief Judge, or his or her senior judicialnominee. He or she should be seen to be takinga lead and where possible participating, to takeresponsibility for ensuring that everyprogramme passes the basic test: does it doanything to undermine judicial independence?And if the answer is yes to ensure that theprogramme be changed or abandoned. He orshe, the Chief Judge, should have the unstintingsupport of the rest of us in the difficult area. Ifthere is any suggestion of the executive takingsome sort of control, then a united andsupportive front behind our judicial leaders isvital.

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NEW – JUST OUT“THE MAGISTRATE IN THE

COMMONWEALTH – A TRAINING MANUAL”

Updated 2005This updated publication is now available

in paperback copy or CD Rom from the CMJA

Price £10 for both (or £5 individually)

The history of the use of computers by judgesin England and Wales falls into three mainphases. The first lasted between 1992 and1999. In this period about a third of our full-time judges were supplied with lap-topcomputers, along with word-processing andcommunications software. No money wasprovided for training, and judges did their bestto learn how to use the equipment, often withthe help of other judges (usually the youngerones) at their court centre who had IT know-how.

This second phase began in January 1999 andwill end in 2006. Until June 2004 I was thesenior judge in charge of modernisation, with aplace on the Government Board charged withintroducing a £200 million IT investmentprogramme into our courts. In mid-2002 noneof our courts were networked. By April 2006all our Crown Courts and most of our countycourts will have a basic IT network. This linksthe courtrooms and the judges’ chambers notonly into the local area network but also intoa wider national network which embraces alljudges, court staff and court administrators.

Work has also been progressing to develop aone-stop Judicial Portal (for easy access of ajudge’s information needs on the Internet,including modern communications software),and also an electronic on-line legal informationservice (‘ELIS’), which makes available to thejudiciary most of the law reports and statutorymaterial that are now in digital form. This isparticularly valuable for judges in countryareas with poor local library facilities.

During this period a second generation offreestanding laptops were supplied, this time toevery full-time judge (unless they said theydidn’t want one). Initially a three-day trainingcourse was provided for each judge (exceptthose already proficient in the use ofcomputers) when the laptop was supplied. Butthere was no other training help other thanthrough a local IT liaison judge at the courtcentre, who did his or her best to assist.

When what was called the LINK installationarrived at a court centre from about 2003onwards, the judges were also provided with anetworked desktop PC (in addition to theirjudicial laptop) and received training on itsuse, usually alongside the court staff at thecentre. The provision of two PCs was incon-venient, but security considerations meant thatthe judges’ freestanding laptops could not‘plug in’ to the Government Secure Intranet,and we were very keen that they should notlose the benefits of the court centre networkuntil such time a new generation of securelaptops were delivered.

This is happening now, and by April 2006most of our judges will have been suppliedwith a third generation laptop, of a superiorspecification, which they can use for allpurposes, and can take from court to court (solong as the LINK network has been installedthere) and ‘plug into’ their private files throughthe network. We have done our best to ensurethat nobody may have unauthorised access toa judge’s files.

Meeting training needsThe Judicial Studies Board (‘JSB’), which isresponsible for all aspects of judicial training,took over responsibility for judicial ITtraining, and created its first IT Strategy Groupat the end of 2000. When the JSB took overresponsibility for judicial IT training, a judgewas appointed the co-ordinator of judicial ITtraining, with back-up from skilled staff at theJSB. In July 2002 a set of ‘basic competences’was established, and a Training Needs Analysiswas sent to every judge, in order that the JSBcould assess the scale of the training need.About a quarter of our judges were assessed asbeing sufficiently skilled to have no trainingneeds at all. On the other hand, 45% fell so farbelow the required competences that theyneeded to be retrained from scratch. Theothers fell somewhere between these extremes.

Resources were then concentrated onproviding two-day training courses for whatwere called the Legacy Groups (being the

34

COMPUTERS FOR THE ENGLISH JUDICIARY

The Rt Hon. Lord Justice BrookeCourt of Appeal for England and Wales. A contribution to the CMJA’s Accra conference.

legacy of a past in which no training wasprovided), and the arrangements for liaisonjudges at each court centre were strengthened.Every residential civil, criminal and family lawcontinuation seminar since mid-2002 also hadan hour set by for training on some aspect ofIT skills, dependent on each judge’s particularneeds.

The JSB reviews the progress of its IT trainingstrategy every 12 months. At its November2003 meeting, the Board approved thefollowing strategy:

• Training for part-time judges (to supportthe LINK, Judicial Portal and LegalInformation On-line programmes and theIT-driven case management elements ofthe criminal justice reforms);

• Review and revision of the IT competenceframework (to raise levels of proficiencyonce the majority of judges reachedminimum competence following theLegacy and basic skills CD package)

• Development of a multi-media distancelearning strategy, involving: (a) develop-ment of the JSB’s websites; and (b)evaluation of the JSB’s public and trainingwebsites:

• Training and/or information needsanalyses (TNAs) of judges,magistrates/legal advisers; and tribunalsjudiciary;

• Review and revision of the web-userrequirements (a) to meet the needs identi-fied in the TNAs in relation to trainingand knowledge management and (b) toensure that the functionality exists to keepthe JSB abreast of changes in technologye.g., electronic submission of travel andsubsistence claims

In January 2004 an excellent training CD-Romfor basic IT skills was sent to every judge.

A second IT Training Needs Analysis was sentto all judges in the summer of 2004. Thisrevealed the success of the training strategy todate. Nearly half the judiciary were nowassessed as having no further training need,and a further 30% were now in the interme-diate category. Most of the remaining 20%were in the most advanced ‘Legacy Group’,and only a tiny minority were classified as‘Won’t’. The co-ordinating judge said that it

could now be said that 63% of the judiciarywere now making effective daily use of the ITequipment provided to them.

In addition to the CD-Rom, a two-volume ITBench Book has been supplied to all judges, tohelp them when they get into a muddle.

In 2003-4 the JSB’s strategy advanced along sixparallel lines. They:

• Issued the training CD-ROM on basic ITskills. They later issued an XP version,incorporating features associated with thenew laptop build.

• Reviewed the IT competence framework.

• Developed an outline distance learningstrategy, designed to lead to recommenda-tions for a project to develop a fulltraining needs analysis (which will includeIT skills and knowledge managementneeds) in 2005.

• Launched their private training website inApril 2004 (to which all judges haveaccess).

• Undertook a review of their publicwebsite1. This review recommended short-term changes to the site to make it moreeasily navigable and more relevant to themagistracy and tribunals judiciary. Thepublic website has now been re-built andhas been available since the beginning ofNovember 2004.

• Prepared an outline communicationsstrategy, which includes recommendationsfor development of an e-business strategy.

At the annual review in December 2004 theBoard decided that they would:

• Develop a training programme to

(a) bring judges who, despite the Legacyprogramme, still fell below thethreshold of minimum competence setout in the existing framework (via aseries of Legacy-type seminars); and

(b) achieve compliance with the new levelof minimum competence expressed inthe draft competence framework(probably by means of local, ITLiaison Judge-led support in using thetraining CD-ROMs);

35

Tonga is an Island Kingdom in the SouthPacific with a population of about 100,000.Politically, Tonga has been a kingdom sinceabout 910 AD. The first King was of the God‘Aho’eitu and he derived his authority from hisdivine origin. All things in Tonga belonged tohim, the land, the seas and all the people. Hisrule was absolute. His wishes were the law. Astime went on and on the population grew,subsequent Kings appointed some of his closestrelatives to be Chiefs and put them in charge ofcertain areas of the Kingdom but under hisoverall rule. That was still the position in the1700s and 1800s when there was first contactwith western and other civilization. The Kinghad absolute power. The Chiefs had somepower but subject to the wishes of the King.The commoner has no rights and no powersand they existed only to serve the King andChiefs.

All this changed within the lifetime of one manKing George Tupou I (1845-1893). He had towage war against some of the Chiefs whoresisted his authority and reunited Tongaunder his rule. He advocated Christianity andwith advice from some missionaries he had awritten Constitution made in 1875, whichdeclared:

Since it appears to be the will of God thatman should be free and He has made allmen of one blood therefore shall thepeople of Tonga and all who sojourn ormay sojourn in the Kingdom be free forever. All men may use their lives andpersons and time to acquire and possessproperty and to dispose of their labourand the fruit of their hands and to usetheir own property as they will.

• Develop a project to identify judicialtraining and knowledge managementneeds which would feed into the TrainingNeeds Analysis project proposed in thedistance learning paper;

• Develop a project to identify the commu-nication and information managementneeds of the tribunals judiciary and themagistracy;

So far as IT training was concerned, it wasproposed that there should be the continuedprovision of training to achieve a level ofminimum competence in relation to current,and successive competence frameworks; andthe continued provision of induction trainingin the use of IT equipment to new judges assoon as they were appointed. Experience isshowing that new appointees to the Bench aregenerally much more familiar with IT skillsthan their predecessors!

I chaired the English Bar’s first ComputerCommittee 19 years ago, and I took a leading

part in all these developments with judicial ITbetween 1991 and 2004. Today’s scene is nowtotally different from what I remember in thoseearly days. Although I have often beenfrustrated by the slow pace of change - and Iam still spearheading the demand for modernsoftware systems that will be of more help tojudges who have the responsibility ofmanaging cases - the great progress that hasbeen made in developing and implementing thetraining strategy over the last three yearsmeans that more and more of our judges willbe adept at using these working tools when atlong last they are delivered.

In this paper I have concentrated on training. Ihave often spoken and written about the devel-opment of the use of technological aids inEnglish courtrooms, and this is a much vastersubject.

Endnote1 http://www.jsboard.co.uk/. This contains a

massive amount of helpful information, avail-able to all.

36

TONGA: THE STRIKE AND THE JUDICIARY

Samiu PaluChief Magistrate of Tonga

37

He also put into place a Westminister type ofGovernment. Further, he subjected himself andhis future heirs to the Constitution.

Tonga is not an industrial Country. Mostpeople earn their living from the land and seanevertheless the Government, which is thebiggest employer, employs about 9,000 peopleincluding the Magistrates in its civil service.

The StrikeOn 22 July 2005, about 8,000 civil servantswent on strike, the first of its kind in theKingdom in which most of the staff of theMinistry of Justice joined. The immediatecause of the strike was dissatisfaction over asalary restructuring project that theGovernment had just put into effect on 1 July2005. This salary restructure program wasbased essentially on a job description basis.The strikers said that the gap between theMinisters and Head of Departments at one endand the rest of the workers were too big.

The strikers formed an Interim Committee thatrepresented their side and the Government hadtheir own negotiation team. The strike went onfor six weeks. Most of the services of majorGovernment Ministries were paralyzed andcommunity as a whole was also affected.Politicians and local business offered their fullsupport of the strike. It only ended when theGovernment finally accepted the terms of thestrikers with an assistance of an invited facili-tator and a Memorandum of Understandingwas signed.

The JudiciaryOut of a total of about 125 employees of theMinistry of Justice including the judiciary,about 100 people joined the strike. Howeverthe two judges of the Supreme Court and theeight Magistrates of Tonga remained on the

job and provide the service of the Court inemergency matters so as to maintain theindependence of the Judiciary. The ChiefRegistrar also remained and served the twoJudges of the Supreme Court.

The judiciary saw their stance as a matter ofprinciple. They believed that Tonga needs anindependent judiciary which holds the respectof the public. To demonstrate that it wasimpartial, members of the judiciary had tosuppress personal views and only expressviews on matters that came to Court, and inaccordance with the evidence and the law.

Now that the strike is over the judges andmagistrates are pleased that they had remainedon the job and did not take sides, because thereare cases related to the strike that are startingto come in and they can deal with themindependently.

It was a great experience because the strikewas so sudden without any forewarning given.All the Judges and the magistrates stood firmin spite of all sorts of pressures of the strike.For example, one husband is a magistrate (civilservant) who remained on the job while hiswife, also a civil servant, joined the strike, andsome of the court support staffs that went onstrike publicly attacked individual magistrates.

ConclusionEach jurisdiction within the Commonwealthfamily has its own oath of office, setting fortheir respective Judicial Officers the mainguiding principles. As for Tonga magistrates, itsays, ‘I ... Swear by Almighty God that I willwell and truly serve His Majesty KingTaufa’ahau Tupou IV in the office ofMagistrate and will righteously and impar-tially administer justice in accordance with theConstitution and Laws of this country withoutfear or favour. So help me God’.

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Graham Noel Travers is a magistrate at theRegional Magistrates Court, Pretoria. Hechallenged three decisions by the NationalDirector of Public Prosecutions, by a SeniorState Prosecutor at the Pretoria MagistratesCourt, and by the Director of PublicProsecutions for the Transvaal ProvincialDivision, to prevent any new matters to beheard by the applicant. They sought to justifytheir decisions by reference to the productivityand performance of the applicant as a magis-trate. Mr Travers presided in court 12 atPretoria, which was one of three courts whichdealt exclusively with sexual offence caseswhere victims were minors. He suffers frommuscular dystrophy which affects his finemotor core co-ordination and in turn affectshis ability to write speedily, and had disclosedhis condition to the Department of Justice in1986.

In October 2003, the Chief Prosecutor sent aletter to the Regional Court President,complaining about “the performance in court12 particularly when regard is had to the final-isation rate and the court hours”. Mr Travershad many part heard cases from the ordinaryRegional Courts and, as a result thereof, he isnot always available for court 12. Mr Traverslearned a few days later that the regularmeeting of prosecutors had been told that hewas to be re-assigned away from court 12, andthat no new trials were to be placed beforehim. Mr Travers had an inconclusive meetingwith the Regional Court President and subse-quently sought to resolve the matter byapproaching the International Commission ofJustice and the Association of RegionalMagistrates of South Africa. After thePresident of the latter body has raised thematter with the Chief Justice, the Chief Justicerecommended that the matter be referred tothe Magistrates Commission.

In his application to the High Court, MrTravers contended that there was a history ofopposition to him by the prosecution authori-ties. He gave a number of examples. Hesubmitted that as early as 2001 or 2002 one ofthe senior prosecutors openly stated that if aRegional Magistrate chose not to give adecision she and the defence agreed uponduring plea bargain negotiations, she wouldtake the matter before another magistrate inorder to obtain the desired result. Anotherprosecutor was said to have threatened “toclose [Mr Travers’] court permanently”because he was dissatisfied with Mr Traversretaining charge sheets and the court bookrather than returning them to the Clerk of theCourt.

In November 2004 the MagistratesCommission considered the report of the ethicscommittee and recommended that aclerk/stenographer be assigned to Mr Travers’court; that the authorities ensure that MrTravers’ court was well ventilated and air-conditioned because its current conditionexacerbated Mr Travers health problem; thatthe Regional Court President should ensurethat matters are allocated to Mr Travers in thesame way that they are allocated to otherregional magistrates and assist in case flowmanagements in Mr Travers’ court to ensuremaximum productivity and utilisation of courttime. All should acknowledge that Mr Travershad a disability, and that part as the equalityplan for the courts in general, each concernedparty must ensure that Mr Travers’ disabilitywas accommodated and responded to in termsof the demands of his work.

Mr Travers also argued in the High Court thatthe prosecuting authority by controlling thetrial allocation effectively manipulated theallocation of trials to magistrates. It was

TRAVERS V. NATIONAL DIRECTOR OF PUBLICPROSECUTIONS

IN THE HIGH COURT OF SOUTH AFRICA, TRANSVAAL PROVINCIAL DIVISION

Ismail A.J.18 August 2005

LAW REPORTS

39

argued that the allocation of cases to magis-trates is not a function of the prosecutingauthority as they were a party to the dispute ineach instance. The allocation of cases it wassubmitted should be the function of thePresident of the Regional Court.

Ismail A.J. observed that the alleged practice ofthe allocation of trials by the prosecutingauthority impacted upon the independence ofthe judiciary. He referred to the guarantee ofjudicial independence in section 165 of theConstitution of the Republic of South Africa.In Van Rooyen v The State 2002 (5) SA 246(CC), Chaskalson C.J. stated –

“In deciding whether a particular courtlacks the institutional protection that itrequires to function independently andimpartially, it is relevant to have regard tothe core protection given to all courts byour Constitution to the particularfunctions that such court performs and toits place in the court hierarchy. Lowercourts are, for instance, entitled to protec-tion by the higher Courts should anythreat be made to their independence. Thegreater the protection given the higherCourts, the greater is the protection thatall courts have.”

Ismail A.J. noted that, whatever the statisticsas to completion rates might have shown, thedecision to prevent new matters being placedbefore Mr Travers was not one for the prose-cution authorities to make. Notwithstandingthe Magistrates Commission’s recommenda-tions the prosecuting authorities persisted withtheir policies and effectively suspended theapplicant from presiding over new trials. Hecited the Constitutional Court in De Lange vSmuts 1988 (3) SA 785 (CC): “JudicialOfficers enjoy complete independence from theprosecutorial arm of the State and are there-fore well placed to curb possible abusive ofprosecutorial power.”

When dealing with the functions of a magis-trate or judge the level at which cases arefinalised might be important. However, it wasnot the sole factor which played a role in theequation. The speed at which cases werefinalised could not be regarded as the solecriteria in determining productivity indispensing of justice. The function of apresiding officer is not similar to that of aproduction manager in a factory, whose object

is to meet targets and deadlines. In a factorythe units manufactured, be they cars orgarments are done by machines, whereas in acourt the object is to hear and to adjudicateover issues which will invariably differ fromcase to case. The duration of the trial wouldvary depending on the magnitude, novelty andcomplexity of the issues and the number ofwitnesses involved and the nature andsubstance of argument.

Section 165 of the Constitution has recognisedthat the principle of judicial independenceapplies to all court including the magistratescourt. In Van Rooyen, the Chief Justice stated,“The Constitutional protection of the corevalues of judicial independence accorded to allcourts by the South African Constitutionmeans that all courts are entitled to and havethe basic protection that is required” andemphasised that “magistrates are entitled tothe protection necessary for judicial independ-ence, even if not in the same form as higherCourts.”

Ismail A.J. declared himself of the view thatmagistrates enjoy the same level of judicialindependence as judges do. Thus, any decisionon the part of the prosecuting authorityregarding finalisation of cases by magistratesamounted to an interference with the judicialindependence of the magistrate. He acceptedthe argument of Mr Travers that the allocationof cases to the individual magistrates should bethe function of the magistracy and under thesupervision of the Regional Court Presidentand not in the hands of the prosecutingauthority who are a party to the dispute. TheBasic Principles on the Independence of theJudiciary adopted in U.N. General AssemblyResolution 40/32 and 40/146 in 1985 includedas Principle 14 “The assignment of cases tojudges within the court to which they belong isan internal matter of judicial administration.”In the Supreme Court of Canada, inMackeigan v Hickman (1989) 61 DLR (4th)688 (SCC), McLachlin J stated that it was“beyond doubt that the assignment of judges isa matter exclusively within the purview of thecourt. It would be unthinkable for the Ministerof Justice of Attorney General to instruct theChief Justice as to who should or should not siton a particular case; that prerogative belongsto exclusively to the Chief Justice as the headof the court. To allow the executive a role inselecting what judges hear what cases would

40

constitute an unacceptable interference withthe independence of the judiciary.”

Ismail A.J. rejected the argument of counsel forthe respondents that the reason for not refer-ring new matters to the applicant had nothingto do with forum shopping or the interferencewith the independence of the judiciary. Thedecisions taken were taken in order to ensurethat the accused received a speedy trial. It wasnot the case that that the ProsecutingAuthority, being part of the executive branchof government, could exercise this right. Theirdissatisfaction with the applicant’s work rateor productivity in the finalisation of mattersought to have been taken up with the relevantbody, namely the Magistrates Commission. Hecommented,

“Objectively seen the allocation of casesto magistrates by the prosecution wouldbe perceived by accused persons and any

reasonable person as interference in thejudiciary as the prosecution could manip-ulate the outcome of a trial by choosingcertain presiding officers instead of others.In the apartheid era political matters weregiven to certain magistrates who werehand chosen to hear these cases. SouthAfrica is no longer regarded as pariah stateand is well regarded in the internationalcommunity of nations. For this reasondespite [counsel’s] argument that thesystem in place has been in operation formany years and for that reason it shouldnot be altered is not a persuasive one.”

The decisions were set aside, and the respon-dents interdicted from attempting to control orto influence which matters are enrolled beforethe applicant. and from interfering with theindependence of the Regional Court in relationto any matters concerning the judicial office ofthe applicant.

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