The judicial system and good governance
By Dr James Rose
June 11, 2001
WITHIN recent times, the judicial system has been the subject of public commentary. This is by itself a healthy sign since it reflects a commendable level of intervention in an open society where freedom of expression is encouraged and public institutions are not considered beyond the pale of public criticism.
It may also indicate the current perception of an important, but sensitive institution, by the articulate elite, in our society.
It is an acceptable presumption that the system of justice protects us against common crime or poor government administration either for reasons of arbitrariness or because of corruption. It is the presumption that the judicial system provides us with an objective forum for the settlement of disputes based on widely accepted norms, thereby facilitating natural justice and peaceful co-existence.
In an exceedingly contentious environment, we would like to think that we can appeal directly to this system without the intervention of bureaucratic, political or economic godfathers for the rule of law to be applied in order to protect any or all of our rights.
Until a few decades ago, we placed the judiciary and the justice system on a pedestal of respect and confidence. We trusted and respected the robed personages who were held in awe and high esteem. But because of the failure to address current challenges in a timely and prudent manner, standards have fallen, the ancient mystique has been eroded and the system in now being seriously questioned. The gravest consequence of this questioning is the tendency to fault the process and to perceive, as seriously flawed, decisions which run counter to our expectations.
The paramountcy of the law, of legislation and court decisions require that the law and the institutions that make or apply the law should be given the necessary authority and autonomy to function independently, effectively and efficiently. There are arguments which suggest that this might not have been the case, always.
Disinvestment in human resource, physical infrastructure, and a reluctance to enable the system to keep abreast of change and developments in the legal world, have rendered the system increasingly ill-equipped, antiquated, uninformed, undermanned, poorly staffed, unresponsive, and therefore exceedingly vulnerable.
A judicial system that dispenses justice in a manner that is both fair and expeditious is an indispensable pillar of any system of good governance. Yet our experience suggests that delays in the delivery of justice is endemic and the quality of the product being dispensed compromised by an increase in the incidence of crime, lawlessness and a growing disposition towards litigation.
Without the presence of adequate institutions to implement the rule of law, making it a reality in our experience, contradictions will arise between cherished ideals and daily life. These contradictions promote mistrust and cynicism, procure unjust advantages, erode democracy and create untold obstacles to development.
There is a strong demand to make the legal system more socially responsive, transparent, relevant, modern and flexible. But efforts aimed at modernising the law are not sufficient if the law is not applied with the firmness and quickness we would prefer.
To the extent that we share the perception that justice is dispensed independently and effectively and that equality of opportunity is possible, to that extent we share in a climate of public confidence, stability, transparency, absence of discretion and respect for the rights of each individual; the indispensable framework for the development of individual initiative, competitiveness and equitable growth.
In the midst of the current debate on the role, size and areas of action that are appropriate for the State, few would deny that a respected judicial system is one of its key functions, one of the principal public benefits which the State ought to provide to the community.