Comment: Good governance and the judiciary – lessons to be learned

05 Nov 2012, 15:25

Rasheeda Mohamed Didi

“The true administration of justice is the firmest pillar of good government.”

inscription on the Supreme Court building of New York

Simple and fundamental as it is, this inscription, totally captures the idea that I am trying to convey. That is, good governance is impossible without a strong, independent and fair judiciary. Hence, we need to pay serious attention to this for future development of our country.

Examples around the globe abound, supporting the profound words in the inscription.

First, let us look at the fashionable phrase “good governance”, introduced by a World Bank study in 1989, linking governance with development. Despite different, closely-related definitions, most believe that good governance should encompass certain characteristics such as people’s participation in the governing, consensus, equity, transparency, efficiency, accountability, responsiveness and judiciary.

Of all these characteristics, this article will concentrate on the importance of the judiciary in good governance: the inter-relations and the effects on each other.

One of the important features of the judiciary is its independence. An independent judiciary is of utmost importance for good governance rule. A case in point is the classic example of Somalia, which is categorised as a “failed state.” At the centre of this failure lies governance.

The failure of governance in Somalia is closely tied to the relationship between the judiciary and government. For example, in 2004, the then-President had the power to appoint and dismiss judges as he pleased. This signifies a non-independent judiciary, which is over-powered by the executive. Another crucial factor that contributed to the collapse of the state was the government’s failure to uphold the constitution. It merely paid lip-service to the constitution.

The process works the other way too. For example, research on Africa shows that corruption and weak administrations weaken the regime. This, in turn, weakens all the laws, whether good or bad. In short, the absence of good governance gives way to weak laws. If laws and regulations do not exist or are weak, the three powers start running the government with their “thumb”. This means authoritarian rule, which could hinder development.

Corruption within the judiciary can be seen in the Peoples’ Republic of China where it is a serious threat to good governance as it leads to courts being unresponsive to the country’s complex society and undermine the legitimacy of the law and government. The problem in China is the deeply-rooted concept that laws must be used to strengthen state capacity and fulfill political ends.

Another case where judicial corruption prevails is Indonesia, where the Supreme Court’s integrity value has ranked amongst the lowest. The result is that the public does not see the Supreme Court as the provider of justice, and instead, the public perceives it as part of the rule of law problem which provides a serious drawback to good governance.

In Pakistan, governance failure, among others, is at the heart of the country’s constraints to growth. This is, partly, due to the less independent nature of the judiciary in which the courts do not protect the lender against the loan-defaults who do not pay their loan, or from ambiguous land titles constraining mortgage financing and construction activity.

Nepal is a case where constitutional structures are not sufficient to create an independent, impartial and accountable judiciary. Some scholars believe that planning and visionary leadership are instrumental for meaningful and lasting changes to take hold. Simply taking action against a few judges is not adequate.

In Mexico, the confused state of the judiciary effects the government in a negative way. Here, the problem is the existence of suspicion between legal thinking and politics.

Now, what lessons can we learn from the very limited examples given above, and from some others?

Lesson 1. The judiciary should be independent of the executive and the legislature. It should not be influenced or over-powered by the executive or the legislature; or even a former executive and his/her cronies. However, this does not mean that the judiciary is above the law or outside the law.

Lesson 2: We should have a judiciary in which people have trust and faith, as in the case of our “Big Brother” India whose Supreme Court is said to be “one of the most powerful institutions of its kind” in the world. The importance of this is that the judiciary has performed well, sustaining the trust of the people in its independence.

Lesson 3: We should use democracy to fight judicial corruption and not judicial corruption to undermine democracy, as in Chile where, after the military dictatorship, the role of democracy was used as a punishment and a preventive mechanism to hinder exceptional emergence of judicial corruption.

Lesson 4: Corruption in the judiciary should be gotten rid of before its roots dig even deeper into our behavior, making it the accepted norm.

The way forward: Let’s fight to reorganise the judiciary to pave the way for good governance, without which there is no hope for our country. We might as well sink into the beautiful, deep blue Indian Ocean.

All comment pieces are the sole view of the author and do not reflect the editorial policy of Minivan News. If you would like to write an opinion piece, please send proposals to [email protected]

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