FEBRUARY 1, 2024
Her Honor Sie-A-Nyene G. Yuoh, Chief Justice of the Honorable Supreme Court of Liberia, and Associate Justices of the Honorable Supreme Court
Her Honor, Nancy F. Kpakilleen, President, National Association of Trial Judges of Liberia, and officers and members of the NATJL
Cllr. Sylvester D. Rennie, President, Liberia National Bar Association, and officials of the LNBA
Cllr. Dr. Jallah A. Barbu, Dean of the Louis Arthur Grimes School of Law
Government officials present
Platform guests
Distinguished Judges, invited guests, ladies and gentlemen:
I’m humbled by the invitation extended me by the National Association of Trial Judges of Liberia (NATJL) to deliver the keynote address at the opening of its Tenth National Convention being held under the theme:
“The Judiciary and Democracy in Liberia: Safeguarding Democratic Values in the Legal System, Especially During and After Elections. ”
I understand the objective of this theme to be a desire to explore and interrogate what judges and the entire judiciary can do to safeguard democratic values in Liberia. Hence, in deciding how to engage with the theme of this Convention, I considered WHAT is required of judges or the judiciary for “Safeguarding Democratic Values in the Legal System, especially during and after elections’’. Some of the questions I pondered over were:
1.What the judiciary can or should do this day and going forward that is different from what it has been doing in order to safeguard democratic values?
2.How and when the Judiciary can do what is required to safeguard democratic values?
Reflection on these questions quickly led to a few observations, namely:
1.that judges are not politicians who are swayed and/or must respond to changing political dynamics, “partisan interests, public clamor, or fear of criticism” during or after elections or at any time.
2.The role of judges under our system of law has been the same for centuries: to be faithful to the law and fairly apply said laws to decide disputes without undue delay while maintaining high standards of conduct and demanding same from administrative staff, lawyers and others dealing with their courts.
3.The role of judges along with the very existence of the judiciary is to safeguard democracy and democratic values through observance and implementation of the rule of law.
4.Judges and the judiciary simply doing their job is sufficient to safeguard democratic values. Nothing more, nothing less.
The foregoing observations have led me to the conclusion that Liberian judges comprising the NATJL need not do anything more than what is required of them-i.e., discharging the duties of their office in a manner that promotes and preserves the integrity and independence of the judiciary, thereby promoting public confidence in the judiciary.
The question therefore is not what judges should do to safeguard democratic values, but how and when they should discharge their constitutional and statutory duties so as to sustain the rule of law and democratic governance.
Accordingly, I request leave of your Honors to present my remarks under the topic: Efficient, Predictable, and Fair Disposition of Cases is indispensable to safeguarding democratic values and promote confidence in the Judiciary.
As stated earlier, the duties of judges to dispose of cases fairly and timely are established by law, and cannot be changed by judges. It is also conceded that discharging the duties of judges requires competence in the law, but such competence as relates to Liberian judges is presumed conclusively with reasonable assurance not hardly contested. The focus therefore is and should be on how to ensure that disposition of cases is done efficiently, fairly, and timely based on existing law found in statutes and precedents.
I submit that there are a couple of ways that judges could do nothing more than performing their normal duties, and the Liberian judiciary would still be considered as successful in safeguarding democratic values. In particular, I suggest that to safeguard democratic values and promote confidence in the judiciary will require judges disposing of cases with efficiency; predictability and fairness. I present below a brief discussion of each of the three factors.
A.Efficiency in the Disposition of cases
A court’s disposition of every case entails (i) personal attention, diligence, efforts, and time of the judge, the clerk, ministerial officers and other court’s staff as well as the party litigants and their counsels; and (ii) processes and procedures for receiving, filing, serving, recording, retrieval, and securing of papers. The efficiency of all persons and processes involved in the disposition of a case is therefore key to fair and timely administration of justice.
As in every organization mindful of promoting, measuring, and rewarding efficiency, key performance indicators(KPIs), no matter how called or measured, are required in the judiciary in respect of the following:
1.Average/minimum required attendance, including punctuality and time stays in office by everyone including judges;
2.Average/maximum time for filing of each case, service of precepts; assignment of cases; and rendition of rulings and judgments following hearing;
3.Minimum number of cases required to be heard and/or disposed of per term and, for courts with panel of judges, minimum number of cases per judge and by all the judges;
4.Improving and revising processes consistent with law through the use of digitization for filing and service of papers; and
5.Ensuring that amount of filing fees is appropriately determined and adequate enough to cover all expected cost of filing and service of papers throughout a litigation (differentiated based on clearly determined factors) such that no form of payments (tips or otherwise) to court officers is permitted.
It is acknowledged that lawyers and party litigants are themselves partly responsible for some delays in the disposition of cases, and even for unofficial payments offered or made. However, a judge is the master of his/her the court, as he or she is indisputably the voice or representation of the court. Further, a judge is not only required by judicial canons and statutes to demonstrate high standard of conduct, but to demand same of everyone doing business in and/or with his/her court. Hence, when a judge leads, everyone follows. Note for example how regular attendance and punctuality by a judge will likely impactthe tardiness of lawyers as well as court’s staff, and see how that can be carried to scale and replicated.
Hence, if we desire an efficient and proficient judiciary, we must do away with the adage “the court is the time” or ‘’the judge’s time is THE time’’. This is why you would see a court daily agenda with about ten to fifteen cases scheduled AT THE SAME TIME but in actuality they are meant to be heard sequentially and, in not so infrequently, some of the assigned cases are not called for hearing. Any court that is not guided by a prescribed timeline for disposition of cases is susceptible to problem of inefficiency and complaints by lawyers and litigants who are forced to attend as scheduled or risked default ruling/judgment.
For the public to have confidence in the judiciary, the judiciary itself needs to have a strict adherence rule of courts and/or discipline. Although many see the gavel which judges hold as their authority, the actual authority lies within the ability of a Judge to expeditiously dispose of cases along with the quality of the judge ruling/judgment, which promote respect for and compliance with such judgment(s).
B.Predictability in the Disposition of cases
Predictability in disposing of cases entails:
1.reasonable expectation or knowledge of when a case will be heard; and
2.reasonable expectation or knowledge of the likely ruling of a courtbased on existing law including prior binding decisions.
A reasonable expectation or knowledge of when a case will be called or heard is determined mainly by use of the docket system, while predictability of likely outcome is based on the reasonable expectation that the court will adhere to precedent, which is the foundation of our jurisprudence.
i.Docket System
The importance of a docket system and the legal requirement to have it established, maintained and observed are not subject to dispute; the problem is compliance with the requirement for docketing.
Section 15.2 of the Civil Procedure Law provides for cases to be docketed upon service of the defendant(s), and that “cases docketed for a term of court shall be shall be docketed in order of the date on which the clerk receives proof of service, except that cases entitled to preference shall be accorded priority over others.” Further, Part III (a) of the Supreme Court Rules of Court also provides that “the Clerk shall enter upon the docket all case appealed to or pending in this Court in the order of their filing”. The Honorable Supreme Court has opined in Al-Boley et al v Unity Party, 33 LLR 244 (1985), that…‘’the name of ‘docket’ or ‘trial docket’ is sometimes given to the list or calendar of causes set to be tried at a specified term, prepared by the clerks for the use of the court and bar.”
The question therefore is whether these docketing rules are being enforced and, if not, why?
In answering the question above, it has to be noted that the absence of an effective docket system has led to cases being heard on a discretionary basis characterized by the following:
a.cases are assigned not on the basis of when they were filed or the significance of the issue presented or interest represented, but on the basis who is involved or who knows the judge, or which lawyer can beg well;
b.Some judges have been reported to have refused to assign cases brought by some lawyers solely because of disagreements the judge(s) with the lawyer(s);
c.some judges assign or refuse to assign cases on the basis of which law firm is involved presumably not to bolster the business of any one law firm when in fact a law firm is not a party to a suit and making decision affecting the assignment or hearing of a case based solely on which law firm represents the party litigant is clearly impermissible and unethical.
The foregoing are just but a few of the negative consequences of not implementing a docket system that would ensure transparency, and thus minimize, if not prevent, the cases of the rich and powerful being fast-forwarded while those of the poor and lowly remain unattended despite the fact they the cases of the lowly were filed first in time
Parties filing cases before the court must know with certainty when their cases will be heard right after it is filed. This practice would engender much-desired confidence in the judiciary. Indeed, establishing, maintaining and observing an effective docket system is quite beneficial to the judiciary and everyone concerned because when everyone is in an established queue to have their cases heard, everyone including the rich and powerful as well as government officials will join in efforts to find resources and solutions to the problems causing delay in disposing of cases for the advantage of everyone. The judiciary may do well to consider use of the docket system as one means of ensuring adequate funding and/or resourcing of the legal system.
ii.Adherence to Precedent a tool of Judicial Accountability
Our legal system, like all common law jurisdictions, is based on the doctrine of precedent, which mandates that prior decisions be applied unless there is a cause sufficient to rule otherwise. The doctrine of precedence promotes predictability of judicial outcome (and is the primary basis/tool used by lawyers to determine whether a case is frivolous or have merit, and also for most pre-litigation legal advice provided by lawyers. Predictability based on observance of precedents also ensures that a judicial decision is not a product of the judges’ feelings or personal views on a given law or precedent or a desire to have ruled in favor of a given litigant.
Unfortunately, there is considerable record and/or numerous complaints that quite a number of judicial decisions show a complete disregard of established precedents or clear statutory provisions. I bear personal testimony to two instances each involving international investors where my law firm filed a motion to dismiss for lack of jurisdiction because of the existence of an arbitration agreement pleaded and not denied. In one case, a circuit court judge refused to dismiss the action because the judge said parties could not use arbitration agreement to oust a court of its jurisdiction, and the judge so ruled. It took about two year before the matter was heard by the Supreme Court which of course reversed the patently erroneous ruling of the judge. In the other case, the judge acknowledged the court’s lack of jurisdiction, but said the court would not rule on our motion because the court needed to have a conference with the parties in order to find an amicable settlement. The Judge kept the matter for months until a petition for a remedial writ was filed, heard, and determined in favor of our client against the court/judge.
The point is that disregarding clear or settled law or a court’s own recent prior decision without stating clear the differentiating circumstance(s) justifying such departure from the settle law is often presumed to be the product of judicial hubris, nonaccountability or other motivations, and thus ultimately affect respect for the judgment, the judge and the entire judiciary, although it is often the case that the wrongful act is by one or a few persons/judges.
C.Fairness in the Disposition of cases
The justice system exists to protect the interest of both the poor and mighty in a manner that is fair and just. To have the necessary moral authority to render binding and enforceable rulings, the court/judge must protect the rights of all, including the poor and rich and powerful alike and doing it effectively. Efficiency requires that every step of the process contributes to a just result by working the way it is intended to work, without certain favors.
The public expects accountability and good stewardship of the legal system. This includes equity, justice, and probity by all persons including court officers, lawyers, party litigants, jurors, and judges themselves. It is not an enough defense that some of the problems with the court system are caused by lawyers, court officers, jurors, etc. Judges have enormous control over their courts, which means they can demand of everyone dealing with their courts not only what the law requires but any high standards each judge sets for herself or himself. Perception is sometimes as important as reality, especially in matters relating to reputation and public confidence.
The bucks stop with the judge who can prevent, stop, or mitigate any inefficiency, wrongdoing or whatever is wrong. Hence, by reason analogous to the well-known last clear chance doctrine, judges bear the greatest responsibility for any miscarriage of justice including any conduct less than honorable by whomever in respect of a case because judges have both the authority and means to prevent, stop or mitigate any wrongful or dishonorable conduct in their conduct or affecting orders, verdicts, or judgments or the confirmation/enforcement thereof.
Conclusion
In conclusion, I submit that judges and the entire Liberian judiciary needs not do anything extra during or after elections to safeguard democratic values. Rather, they need do every day ONLY what is required of them by virtue of their offices. In short, judges only need to maintain faithful adherence to and application of the law in the disposition of cases in a manner that is efficient, predictable and fair.
Ultimately, judges, as the personification of the court, are “the last place of hope for man on earth”. Hence, just as judges are reviewed by higher tribunalson earth so they will also be reviewed by the all-knowing, most just, and supreme judge and arbiter of all human affairs and conduct. And the focus of every judge, this Convention, and this Association is or should be what would the Good Lord say of your stewardship in disposing of cases and safeguarding the rule of law and democratic governance in Liberia. Let’s hope and work that it will be as you would desire.
Thanks for your attention.