by Mathieu Célien Ramasiarisolo, Madagascar, November 1997
THEME = JUSTICE
As the 21st Century dawns, with the globalisation of whole areas of political, social and economic life, it is essential to have a judicial system, worthy of the name. Such a system, issued from a State where the Constitution is respected, and credible on both national and international level, can alone guarantee the security of both people and property, safeguard democratic liberties and encourage economic progress. This demands well- trained judges of high ethical standards.
These last years have witnessed several notable facts in Madagascar's judicial life:
- There's been severe criticism of a number of judges accused of corruption and partiality;
- There's been a split within the judicial body, along party political lines;
- Judges have organised themselves into an influential and unifying Trade Union, but, alas, with questionable methods and results.
In line with government policy, the Justice Minister has drawn up a plan for an independent judicial system, strong and reputable. Such a system is absolutely indispensable to protect fundamental liberties, safeguard people, property and investments.
For a population of 12 million, Madagascar has 349 judges. Most of these are women.
While Madagascar has indeed a "judicial authority", its "power" is not yet in place. That is to say, the judiciary is not yet a body independent of the legislative and executive arms of government, even though this independence is clearly defined in the Constitution of the 3rd Republic. Moreover, the judiciary, as it exists at the moment, is spurned by the population at large, and even by sections of the political classes.
Judges must uphold the Constitution, all Acts of Parliament and all statutory regulations. For example, the separation of executive, legislative and judicial powers. Judges must be impartial and honest. According to Article 127 of the Penal Code, the following persons found guilty of interfering with the course of justice, by either impeding or suspending the enforcement of one or more laws, are liable to the appropriate penalties as laid down by the Penal Code: The Attorney-General and District Attorneys (or their deputies), also police officers attached to the Attorney-General's or District Attorneys's departments.
The High Court keeps a check on decisions made by lower courts. It does this through investigating and reporting on judges' verdicts. It eventually submits its findings to the High Council of the Judiciary. The High Council of the Judiciary is presided over by the President of the Republic. Members are: The Justice Minister (vice-president), the senior Attorney-General of the Supreme Court, the presiding judge and the Attorney-General of each Appeals Court, a judge representing the lower courts. The High Council presents nominations of judges and presidents of courts; it can be consulted on questions of pardon; it acts as a disciplinary council for judges who hear cases.
The present government aims at undertaking a complete re-
organisation of the whole lower court system. The intention is to
speed up legal procedure, and to be in better position to continue
the on-going fight against abuse and corruption. At the moment, in
addition to the High Court, Madagascar has three Appeals Courts,
thirty Magistrate's Courts and two Department Courts
(Editor' note: A "Département" is a sub-
division of a country.
In Article 8 of the new law concerning the judiciary, the senior president of the Appeals Court is appointed by presidential decree together with the Council of Ministers. Presidents of the other courts, are appointed by a decree of the Council of Ministers from a short-list of at least names drawn up by the Justice Minister, in consultation with the High Council of the Judiciary. Other judges (e.g. those working in the Attorney-General's Office) are appointed by decree as proposed by the Justice Minister.
Candidates having a law degree, can sit for the administrative and financial sections of the competitive examination for career judges. Judges-in-training, having obtained a diploma at the end of their studies at the National Law School (ENMG), are called "trainee judges". The system of ethnic quotas for admission to the competitive examination, has been rejected by those in charge of recruitment. At the end of their training period, trainee judges are appointed full judges (4th grade). Nobody can be put on the list for eventual promotion, without six years practical experience as a 4th, 3rd, 2nd grade judge.
Appeals Court judges, Tribunal judges and Department judges are placed under the authority and supervision of the presiding president of the Appeals Court.
Presiding judges have the right to give advice to those judges who come under their immediate authority, offering remarks or suggestions they think necessary in the administration of justice and the right application of the law. But such remarks and suggestions must never restrict a judge's freedom of decision- making. Hence, judges must never be worried that decisions make during the exercise of their office, will be held against them. Judges on the Bench are independent. They cannot be moved, and this very fact is the guarantee of their independence. Thus, it's completely inadmissible that before or after a case, a judge should be moved or offered other posts.
However, correct legal decisions must be made, and this is an important element in the evaluation of the courts and the quality of the Bench. That's why, priority has been given to the on-going formation of judges already in office. In 1997, a number of senior judges followed up-dating courses at the ENMG and in France (ten judges went to France). Fifty judges in all, followed courses in Employment Law and eighty in land ownership.
Judges attached to the Attorney-General's Office come under the authority of their immediate superiors, but they are left perfectly free to act according to their personal convictions and in conformity with the law. They have their own Criminal Investigation Department (CID) who are under the authority of the judges. Police officers in the CID must, as soon as possible, pass on to the judges, all information relating to crimes and misdemeanours they are aware of.
The Attorney-General's representative in the Office is not an ordinary civil servant, but a qualified judge. It may happen that the Attorney-General receives information and instructions relating to a case actually going through the courts, and that his legal opinion may differ from that of those who have prepared the case. In these circumstances, the Attorney-General is perfectly free to state in court, something like "My written conclusions are in the file, but my own personal conclusions are..."
At least, that's the theory, but it is yet to happen in Madagascar! But it is possible, and legal procedure provides for the eventuality, provided the point can be proved. A comparison can be made with Parliament which can throw out a Bill because Members don't agree with it. In the same way, the Attorney-General has every right not to agree, be it on point of fact or of law.
Madagascar's judicial system has an Appointment's Commission. Members are: the Justice Minister, several presidents of courts and departmental heads in the Attorney-General's Office. In 1997, sixty judges actually in office, received new appointments, including very senior judges. This ensures a judge doesn't remain too long in the same post, with the risk of corruption and abuse of authority. But it should be noted that a judge on the Bench can only be transferred away from "his" court, after he has been advised by the High Council of the Judiciary.
There's no doubt that Malagasy judges (like other civil servants), are poorly paid. All the same, their professional code dictates that judges must give a good appearance, at the same time, avoiding the trappings of wealth, which could arouse thoughts such as: "How can I make a bit more money?"
In line with the new law concerning the judiciary, judges have the right to family benefits, allowances, risk payments, children's education grant, upkeep, travel. In addition, every judge has the right to accommodation or a rent allowance. Likewise, the State picks up the bill for medical care, including hospitalisation, treatment in public or private hospitals both at home or abroad.
Does corruption exist? Public opinion never ceases to draw the attention of the Justice Minister and others, to the fairly widespread corruption, generally found in government circles. Judges are equally the target of the most scathing and damaging serious criticism. For that very reason, the present Justice Minister, Imbiki Anaclet, has made efforts to reform the profession and to start investigating complaints levelled against judges. Judges thus targeted, feel hurt by these investigations and they protest. Nevertheless, judges caught red-handed are arrested, placed under a committal order and eventually sentenced.
The judge, servant of the law, has the task of dispensing justice and must lead an exemplary private life. His conduct is dictated by certain considerations. When a case is in progress, he must avoid appearing with the litigants, their lawyers or other interested parties, for then tongues would wag. He must also avoid all outward appearance of political partisanship. What's more, he must absolutely avoid all actions liable to be considered tribalistic, or misunderstood by people in general.
Since French colonial times, a Bar has existed in Madagascar. The first decree setting up the Madagascar Bar, dates from 1937. In 1967, a law recognised the profession of lawyer.
Today, there are 336 lawyers, 229 of them fully qualified and 107 following a probation (training) period. The Court of Appeal is the Bar's ruling body. Lawyer's Chambers are inspected annually. This inspection concentrates on checking that they keep a register of the cases with which they are dealing.
As with judges, lawyers must act with tact and propriety. At a hearing, the Attorney-General's Office must see that the lawyers present their case within the legal time limit. Quite recently, it's been accepted that lawyers could assist their clients right up to the CID level, in order to avoid arbitrary arrests. In certain cases, free legal aid is granted to individuals liable to five years' imprisonment, or those unable to pay the legal fees. In such cases, the Criminal Court asks the Bar Association to appoint one of its members to act as the accused's lawyer.
END