By Pesi Fonua

Judicial Independence to secure people's rights is a worldwide concern, according to Judge J. Clifford Wallace, a former US Chief Judge who was in Nuku'alofa last week for the 17th Pacific Judicial Conference.

Judicial independence means that the courts remain free from the influence of government, politicians and others who might try to interfere or corrupt the process of justice, and by doing so undermine the rule of law.

Judge Wallace who has been an active member of the Pacific Judicial Conference during the past 31 years said that unless judicial independence is maintained, "people's rights can't be secure and that is a problem all across the world, as we are here in this community, in Fiji, and now we have a problem in Pakistan.

"It is very difficult to maintain that independence, there are a lot of things that happen within that political realm which, when the courts are strong enough to make sure that the people's rights are protected, frequently come into conflict with what the political branches would like to do."

Pacific Islands

Judge Wallace said that during the two-days conference in Nuku'alofa from November 7-9 they discussed issues, which are unique and common with Pacific Islands jurisdiction.

"We deal more with the process and procedures. We teach each other from our experiences. We talk about the concept of judicial independence and we work with the building blocks of judicial independence to have the courts so effective that people want them to be independent.

"We deal with delays in courts how to overcome them, the importance of mediation and case management. We talk about how the people must understand the court and there must be a way for the court to provide information so that the people understand and support the court."

Beijing Statement

Judge Wallace said that they also discussed a very important document called 'The Beijing Statement' on the importance of an independent judiciary.

The Beijing Statement has been signed by 32 Chief Judges, representing about two third of the world's population.

"It is a very important document, but it is very little known. But it needs to be known by people, especially by politicians, so that they can understand what is the basis of judicial independence and what it means. It is important for the people to know so that they demand judicial independence, and for government to know so that they understand the importance to have judicial independence.

"I think it is fundamental to any government that people's fundamental rights are protected. It does not matter what the system is but it is all boils down to that. There are many different ways of doing it but all roads lead to that fundamental issue."

Crusader

Judge Wallace is a crusader for judicial independence, and has worked in various parts of the world, including South America and in Asia, and he feels they are winning new believers.

"Yes, I am always optimistic. It is like being an ordained church minister going about preaching, he always feels that he will get another convert, and that is how I feel as well.

"But courts must be independent, and I think it will continue to be that way, because our societies are far more educated now than they were 100 years ago. People now understand why it is important that the court must be independent, they might not always agree with them but they understand the principle that is involved far better than they did before. And most people once they understand the principle, they understand that they must support it."

Closer dialogue

Judge Wallace said that closer dialogue among chief justices and an improved working procedure within the judiciary process are very much a part of maintaining an independent judiciary.

"In the early 70s chief justices never talked to each other and that is why I am trying as best I can to develop this inter-action, and with the interaction you have the more different ideas you see. Now with the advent of the electronic highway, people see other ways of doing things.

"For example, for years there were no written briefs. I was on an exchange between the USA and Britain where we dealt with that, the importance for the judges to read the cases before they hear the argument. Then written submission, skeleton briefs came about. It is an improvement in the British system. Now we do the same thing. There are some countries who did a far better job in mediation then we did. When I am out in one of those countries and I find an idea I bring it back to the USA. So countries are finding new ideas and are developing systems that will work for them.

"We also have to improve the work of lawyers, because if lawyers don't do their job properly, it will make things more difficult for judges. Law schools have to put out good lawyers."

Jury trials

On the issue of whether or not to allow jury trials Chief Justice Wallace recognises there are difficulties in some countries.

"Several countries don't have jury trial. They have trained judges to make the decision. The Jury trial is in our constitution in the United States, so we will have it unless someone wants to change the constitution. I recommend jury trial, but in developing countries it is very hard to use the jury trial properly.

"I think it is very interesting. For example, in the People's Republic of China for years, had a judge but there will be two assessors who will sit with the judges. In South America because of corruption in the judiciary they have three professional judges, but there are also four jurors, who have been selected like jurors and all seven of them will preside over a case.

"Russia did not have Jury until the '80s, but now they are going back. My view on it that is, if it is good for the people and they like it that is fine, it should be accommodated within their system. If it does not work then it has to be modified. What is best for the community.

"You can't have a corrupt judiciary and a rule of law," said Judge Wallace.

He has been a federal judge for over thirty years, a Senior Judge and former Chief Judge U.S. Court of Appeals for the Ninth Circuit, the largest circuit in the United States.