NJC’s Revised Judicial Discipline Regulations Will Strain Fight Against Corruption in the Judiciary
The National Judicial Council (NJC) recently published a revised Judicial Discipline Regulations. The regulations instate new rules governing the reception and consideration of complaints against judges. The revised rules are aimed at curtailing frivolous petitions against judges and prevent judges from being distracted by vexatious and baseless allegations against them.
In principle, Access to Justice welcomes reforms that strengthen the integrity of the judiciary/the justice system and protects the independence of the Judiciary. However, the new regulations will not strengthen the integrity of the judiciary neither will it protect its independence. On the contrary, the new Rules will strain or hurt the fight against corruption and other misconduct in the administration of justice. We urge the NJC to revisit the new Rules again and remove provisions which fetter the right and ability of citizens to make bona fide representations to the Council which the Council will act on, and provisions which limit the Council’s own power to tackle misconduct and corruption and those who engage in or profit from it.
1. Regulation on Time Limits is Overly Intrusive
Rule 1(1) of the revised regulations states: “A complaint must be made within six months of the event or matter complained of, provided a complaint relating to a continuing state of affairs may be made at any time while the state of affairs continues or within six months from when it ends”.
In many instances, cases of misconduct, particularly those concerning corruption occurring in the course of a judicial adjudication are only known after the fact, and there is usually no timeline for coming to this knowledge. In most cases, the corrupt conduct of a judicial officer may only become public knowledge following a careless slip or from the irrepressible work of investigative reporters. Whenever the facts become known, let due process follow! There should be no statute 0f limitations applicable to judicial corruption or misconduct. Our fight against corruption in the administration of justice ought to run a free course.
The Requirement of a Verifying Affidavit is Wrong Foot Forward
Rule 4(5) of the regulation requires that the complaint be “accompanied by a verifying affidavit deposed before a court of record”. A verifying affidavit, in our opinion, stretches the responsibility for credibility a little too far and technicalizes what ought to be simple, accessible and straightforward procedure or action for two major reasons: first, many otherwise valid complaints may be made by people who lack information of the technical requirements now being imposed by the Council. If aggrieved people make credible complaints against judges and these complaints are peremptorily discountenanced because they have not complied with a stated procedure or because they lack some formality, the Judiciary deprives itself of fair and early warning that a person of questionable integrity may be in its midst. This will not do justice to the complainant, to the cause of justice, nor, too, to the Judiciary and society. Insisting that whistle-blowers or informants must verify the “truth of the facts alleged” can act as a strong disincentive to whistle-blowers or informants (who already run risks for leaking relevant information) to come forward with that disclosure. Effective complaint systems encourage, and not stifle feedbacks or complaints even when offered anonymously.
In fairness, the NJC must concede that the rule is also possible to misconstrue even by people with reasonable literacy levels. In any event, it should be said that the duty to investigate, verify and substantiate a complaint in relation to a crime is the responsibility of the police, in the same way it is the responsibility of a disciplinary body like the NJC and not the complainant to investigate and substantiate a complaint. There is no legal justification for pushing that duty to the complainant.
We understand that the NJC, by these Guidelines, wants to safeguard against unnecessary petitions but that objective can be achieved without encumbering the accessibility of the NJC’s complaint process with unnecessary legalisms. While A2Justice will support efforts to reduce inordinate pressures on time and concentration of judges, we urge that judicial integrity should not be sacrificed for technicalities of form and time. The primary concern should be seeking ways to eradicate corruption within the judiciary and not limiting the channels of exposing it.
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