Public Service Ethics and Accountability
Address at the “Public Service Ethicsand Accountability Seminar” Tradewinds, Lami, Fiji August 29th 2006
Madam Nazhat Shameem
I am delighted to speak to you today. However I am conscious that you have had two full days of papers about ethics, accountability and transparency from experts in the field and I am certain you do not want me to re-invent the wheel.
However, the wheel looks very much the same whichever way you look at it. In order to minimize the chances of corruption in any institution, you need to pay personnel adequately, have codes of conduct or ethics with sanctions for non-compliance, you need transparency in accounting systems, tenders procedures and processes for the selection and promotion of staff, and a policy of freedom of information to the public and the media. Lastly, for all government or public service institutions, there must be a degree of independence from political decisions.
These mechanisms should be non-controversial. And in theory they are. Many heads nod in agreement when I talk about these mechanisms in theory. It is when they need to be translated to practice that eyes waver, heads go down and people get a sudden urge to visit the cloakroom.
I want to ensure that no one visits the cloakroom today so I will visit not one of your departments, but my own institution, the judiciary. And I talk not necessarily about Fiji’s judiciary, but the judicial institutions around the world. It would be naïve to believe that judicial corruption does not exist. It exists everywhere, in one form or another. The level of judicial corruption depends on the mechanisms adopted to prevent it developing.
The first such mechanism is to ensure that judges and magistrates are appointed on merit and paid adequately. I have no intention of using this forum to lobby for increases in judicial salaries. However, even more important than salaries, is security of tenure, and adequate pensions. Why? Because judges who are secure in tenure, who know they cannot be removed administratively or whose contracts cannot be arbitrarily cut short, are more likely to have the confidence to write judgments “without fear or favour.” Indeed the world trend is to appoint judges for life, but to ensure that only the best are selected, because the downside is, that you might be stuck with a no-hoper for life. Of course we have no no-hopers in Fiji. Transparency International identifies security of tenure of judges, adequate remuneration for them, and appointments on merit to be important mechanisms for preventing judicial corruption in any country.
The selection of judges (and indeed of all public servants) is crucial. How are judges selected? Who selects them? What is the criteria? And to what extent is merit, gender and ethnic balance and experience relevant? The women in the audience may believe we do not have enough women on the bench. My own belief that merit is non-negotiable. No matter what the gender, ethnic background or sexual orientation of the applicant, he or she must first be meritorious. What is meritorious? Sadly, in the judiciary, boring is good. Exciting is bad. In the selection of judges, the applicant with the belly piercing and last-of-the-Mohicans hairdo is unlikely to get the job. Jokes aside, Fiji has a good system of selecting judges, determined by the Constitution. But not all public service appointments are as transparent or clear. And of course, the process of selection in all jobs has no transparency at all. It is only when an appointment is challenged in court, that there is an obligation to disclose the appointment process. Something to think about.
Another important mechanism is an agreed code of ethics. We all have codes. But do they have teeth? Can we be disciplined for breaches of the Code? Not in the judiciary, certainly.
Another mechanism is the transparency of the case allocation system. There is a wonderful term in Fiji, to describe nepotism, favouritism and queue-jumping. It is called the “who you know.” If you have a friend in a government department, you can get the job done. If not, you must wait for hours, days, weeks. And it is of course, a form of corruption.
So how cases are allocated in the judiciary is important. Not all judges and magistrates move at the same pace. If there is a slow judge in the judiciary and you want to delay the result, you might be tempted to persuade a clerk to place your file before him or her. It’s the “who you know.”
Forum-shopping is a very common form of judicial corruption in many countries. It requires the co-operation of clerks and lawyers. On many occasions, the judge or magistrate is a party to it. Forum-shopping thrives when there is no transparent, equitable and random form of case allocation. When clerks drive case-allocation and not judges. It is for that reason that Transparency International recommends random case allocation to prevent judicial corruption. It also recommends open and transparent judicial decisions.
Why? Well we know that corruption thrives when there is secrecy. And the legitimacy of a judiciary depends on public confidence in it. In other words we judges are only as good as the public believes us to be. The public will have no opinion of us, if our judgments and the reasons for our decisions are not made public.
And so, I come to the media. The media is the most effective way of ensuring that our judiciary is clean. It is the most effective mechanism for preventing corruption in the judiciary. I learnt that when I was the DPP, and when we were struggling with the National Bank prosecutions. A judge with a journalist at the back of the courtroom, behaves himself or herself.
The other advantage of the publishing of court decisions is of course, educative. It teaches the public about the court process and encourages access to justice. But for the purpose of this seminar, it prevents judicial corruption by ensuring that judicial decisions are open and transparent. So previously the public only suspected that we judges were a narrow-minded, gender-biased bunch of bigots. Now, the public knows it.
Lastly, as in all institutions, the judiciary must have a meaningful complaints process for complaints against judges. Often litigants who wait for years for judgments or court records, are afraid to complain because of an apprehension of victimization. But judicial diligence is a judicial ethical principle. We judges are not just required to be impartial and independent. We are required to be diligent too. So there must be a meaningful grievance or complaints procedure to deal with legitimate complaints so they are dealt with effectively. It is another mechanism against corruption.
The principles then are the same for all of us. Openness. Appointments on merit. Accountability. Security of tenure. A grievance procedure. Accessibility to the media and the public. A Code of Ethics with a sanction provision. And work distributed in an equitable fair and random manner.
And last, but probably most importantly, leadership, leadership, leadership. We have to walk the talk, be transparent ourselves, appoint on merit, have transparent processes in our registries and be diligent in maintaining a clean ship.
I have spoken for long enough. Even for a judge. I know that you are all benefiting greatly from this most important conference. I look forward to enjoying the rest of the evening with you. I congratulate all of you, the UNDP, the USP, the Public Service Commission and Transparency International for funding this seminar.