MONDAY ESSAY: The Public Interest, Judicial Independence & The Myth Of Neutrality

Introduction

The Constitution protects judicial independence not to benefit judges, but to promote the rule of law: Judges are expected to administer the law fairly, without regard to public reaction.

The 1992 Constitution affirms that justice emanates from the people and shall be administered in the name of the Republic by the Judiciary. The Judiciary established by the Constitution of Ghana is required to be independent subject only to the Constitution. Accordingly, in the exercise of the judicial power of Ghana, the constitution in its wisdom provides in Article 127 that the Judiciary is not to be subject to the control or direction of any person or authority and that no person is allowed to interfere with the exercise of such judicial power. In our society, judges have discretionary power to do justice in a manner so wide that they may be regarded as law-makers with society being content to allow judges to formulate and develop the law. Indeed, the constitution’s separation of powers, or more accurately functions, must be observed in order for judicial independence to not be at risk. Yet if judicial power, as rightly said, is to be confined by “nothing other than the judge’s sense of what is right” (by the length of the Chancellor’s foot), confidence in the judicial system may be replaced by fear of the system becoming increasingly uncertain and arbitrary in its application.

The public interest and the judicial attitude

Many contend that judges being independent requires them to confine their judicial power by the “public interest” and not their own personal interests. However, it is argued by the author that these same judges who are required to be independent have by their education, training and the pursuit of their profession as barristers acquired a varying collection of attitudes, beliefs and principles which to them may represent the public interest. Many judges may not admit it, or if they do, many may not express it as such. The reality that judges are constantly placed in positions presented to them which require them to make choices, some political and some not political, as determinations of where the public interest lies is a major test on their independence and neutrality. Their interpretation of the law and their decisions are generally supposed to be what is in the public interest, according to them, and thus the kind of people they are or the status they occupy in society influences their views. In summary, judges are the product of society, and thus are concerned to preserve and to protect the existing order. Judges, those who are required to be independent, in reality are expected by the people to still uphold the established distribution of power, the agreed views, fears and prejudices of society, amongst others. Thus, to judges, their views about the public interest may be naturally served by the prevailing political and economic forces which they still see as upholding the independence of the judiciary.

The myth of neutrality

Many see judges as arbiters in conflicts and as such should not have views or positions of their own. The author, contends that such a view is hypocritical and an imagination which is impossible to become a reality. Judges, like other people, have their own personal and political convictions and even do support one or other political party or at best vote for a political party in exercise of their constitutionally guaranteed right of universal adult suffrage. Thus, according to the author, what should be of utmost importance to judicial independence and impartiality should be the function that judges perform and the important role judges perceive themselves as fulfilling in an increasingly politically designed structure. Impartiality and independence do not necessarily involve or imply neutrality. A Judge is no doubt part of the machinery of authority within the State and as such cannot avoid the making of political decisions. Thus, judges ought to be given a break and by so doing be judged by the basis on which their decisions are made rather than the myth of neutrality clothed in jargons of impartiality and judicial independence.

Conclusion

In conclusion, the notion of judicial neutrality, it is argued, is a myth that obscures the complex relationship between the judiciary, the public interest and the state. Judges are not necessarily neutral arbiters, but rather they play a crucial role in shaping the public interest through their decisions. The independence of the judiciary is essential to ensure that judges can make decisions without fear or favour, but this independence must be balanced against the need for accountability and transparency. Ultimately, the judiciary’s legitimacy depends on its ability to uphold the rule of law. By acknowledging the inherent politicization of judicial decision-making, we can work towards a more nuanced understanding of the role of the judiciary in Ghana’s democracy, one that recognizes the importance of judicial independence while also promoting accountability and responsiveness to the needs of the people.

God bless!