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Judges: Servants of Justice or civil servants?

Recent withdrawals of signatures by some Judges who had petitioned and sought for the impeachment of the Chief Justice has raised fresh debate on the extent of the independence of the country’s judiciary.


The withdrawals of signatures was made after four Judges, who also signed the petition were interdicted from Office by the state President, Lieutenant General Seretse Khama Ian Khama for accepting housing allowances which they were not entitled to.


As the debate rages on through the local media platforms including social media networks, the WeekendPost took a look at a paper written by a Judge of the South African Supreme court on a similar matter.


In his paper titled, Judges: Servants of Justice or Civil Servants, Malcolm Wallis discusses the importance of judicial service and separation of powers.


According Wallis, the judicial service is not in the sense of employment, that is, the judges are not employees. As members of the judiciary, he says, they exercise the sovereign judicial power of the state. They are holders of public offices in the same way as the Cabinet Ministers and members of the legislature (Parliament).


“When it is said in a democracy as ours, the executive, the legislature and the judiciary constitute the three pillars of the state, what is intended to be convened is that the three essential functions of the state are entrusted to the three organs of the state and each one of them in turn represents the authority of the state. Those who exercise the state power are the Ministers, the legislature and the Judges,” Wallis explained.


Wallis insists that although Judges must be paid from public monies, they are not civil servants because civil servants are part of the Executive, whilst Judges by definition are independent of the Executive.


“The starting point is a clear understanding that Judges are not civil servants. They are not employees. They have a constitutional responsibility to exercise the judicial authority in our democracy without fear or favour….If Judges were civil servants it will affect the functions of the Judicial Service Commission in making judicial appointments and the working of the courts themselves,” Wallis further explained before adding that the notion “that judges are simply a special class of civil servants may well have hold on the public imagination.”


Although Wallis was discussing the South African state of affairs, matters close to home is the current debate over the proper role of the judiciary and the reorganisation of the judiciary under the office of the Chief Justice. The main question he was answering was that if the Judges are not civil servants, then who is their employer?


He says the only possibility seems to be that in some shape or form the judge is an employee of the state.


“But that raises deeply troubling implications for the concept of judicial independence and the doctrine of the separation of powers. Employees are accountable to their employer. But Judges are supposed to hold the balance between the state and the citizen. They are the guardians of people’s rights. If they are to be accountable to the government, wherein does their independence lie? Are they not then simply civil servants, perhaps with a role of special importance to play, but civil servants nonetheless?” he pointed out.


If judges are civil servants, Wallis says that has undoubted consequences for judicial independence because of their inherent nature of employment. His contention was that the paradigm of an employment contract contains an authority structure at its heart because in return for the payments of wages, the employer bargains for the right to direct the workforce to perform in the most productive way and the employee consents to obey these instructions and so enters into a relationship of subordination.


He goes on to point out that the employer uses both discipline and incentives to enforce obedience and subordination.


“The employer creates a governance structure comprising managerial direction, hierarchies of authority, internal rules of the organisation that allocate power and responsibilities, monitoring devices and techniques for monitoring and policing and disciplining of behaviour. The structure appears as an authoritarian regime that subordinates the employee,” he reiterated.


Wallis argument is that if judges are civil servants, then the above statement is true to them although the mechanisms through which they are subordinated may be subtler and less obvious than in the paradigm case.


“This distinction between the Judges and the members of the other services has to be kept constantly in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice,” he further stated.


He maintains that those who are in want cannot be free as “self reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary and no price is too heavy to secure it. To keep judges in want of essential accoutrements and thus to impede in the proper discharge of their duties is to impair and whittle away justice itself.”


The matter comes at a time when the Law Society of Botswana (LSB) is suing the State President and the Judicial Service Commission over the refusal to appoint a local Attorney as a Judge of the High court following recommendations by commission.


The LSB maintains that the JSC failed to carry out its duty to protect and promote the judicial independence of judges whose appointment and discipline was subjected to political manipulation when the President refused to appoint Omphemetse Motumise and instead appointed a twin brother to one of his cabinet members.

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