The Question of Judicial Salaries and Pensions
This article by Dr Chile Eboe-Osuji discusses the case brought by learned Senior Advocate, Chief Sebastine Hon, in respect of the ‘pay-freeze’ which Nigerian judicial officers have endured for 14 years, commending the judgement and orders of the trial Judge, Obaseki-Osaghae J. of the National Industrial Court. He also recommends amongst other things, that Government may want to adopt the Canadian model of periodic pay increases, for our judicial officers
The recent judgement of the National Industrial Court in Hon v National Assembly & Others, is one of the most consequential judgements in the administration of justice in Nigeria.
The case was brought by Chief Sebastian Hon, SAN, complaining that the 14-year pay-freeze that Nigerian Judges have endured, violates the Constitution and must end. To that effect, immediate salary increases must be ordered in specified amounts for all levels of Judges on the payroll of the Federal Government. Obaseki-Osaghae J, agreed.
Obaseki-Osaghae J’s judgement, was very competently written. Above all, it is wholly consistent with international standards and the best practices of nations.
Proper Judicial Salary, Pension and the Wealth of Nations
It is right to correct judicial compensation now. Adam Smith tells us why. In 1776, he published his famous book, The Wealth of Nations, which earned him the reputation of the chief guru of political economy. He was inquiring into the nature and causes of the wealth of nations. He also accounted for an independent and impartial judiciary, describing it as the most important economic factor. “[B]ut above all,” he wrote “that equal and impartial administration of justice, which renders the rights of the meanest subject respectable to the greatest, and which, by securing to every man the fruits of his own industry, gives the greatest and most effectual encouragement to every sort of industry.”
“Commerce and manufactures”, he explained, “can seldom flourish long in any State which does not enjoy a regular administration of justice; in which the people do not feel themselves secure in the possession of their property; in which the faith of contracts is not supported by law; and in which the authority of the State is not supposed to be regularly employed, in enforcing the payment of debts from all those who are able to pay.”
These considerations give value to Adam Smith’s view that, the proper expenses for the administration of justice “may no doubt be considered as laid out for the benefit of the whole society”.
Centuries later, Professor Martin Friedland of the University of Toronto, wrote that the ultimate reason that Judges must be afforded financial security through adequate salaries and pensions, is not for their own benefit. It is “for the benefit of the public”.
Obaseki-Osaghae J’s judgement, is entirely consistent with the views of both Adam Smith and Professor Friedland. For the sake of the entire system, it is critical to stabilise the Judiciary as a matter of priority. A Judiciary thus stabilised, will, in turn, as it is their job, help to stabilise the rest of society, so that all its members can pursue their fullest potentials.
Then again, the appeal to Adam Smith’s and Martin Friedland’s formula, assumes that all the comparators in the country are in the same boat. But, is it truly the case that all the functionaries in the three branches of government are suffering from the same kinds and levels of deprivations that the Judiciary has endured? If it is only the Judiciary that has been left to languish in personal penury and institutional indigence, then the case for immediate correction becomes unassailable and urgent indeed.
Jurisprudence of Eminent Courts from Around the World
Technically, too, the judgement in Hon v National Assembly, is perfectly in line with judgements of the most eminent courts who have dealt with this question. In unison, they have found financial security to be a critical element of judicial independence and impartiality. Financial security reasonably insulates Judges, from undue venal influence and pressure that compromise independence and impartiality. The Supreme Court of Canada said so in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, and earlier in R v Beauregard. So did the US Supreme Court in US v Hatter, the High Court of Australia in Austin v Commonwealth, and the Grand Chamber of the European Court of Justice in Associação Sindical dos Juízes Portugueses v Tribunal de Contas.
Standards-Setting International Instruments
Hon v National Assembly is also consistent with prominent international instruments that have stressed the value of financial security for Judges, as a critical element of their independence. Amongst them are the “United Nations Basic Principles on the Independence of the Judiciary”,the “Universal Declaration of the Independence of Justice” (known for short as the Montreal Declaration), the “IBA Minimum Standards of Judicial Independence”, the Committee of Ministers of the Council of Europe’s “2010 Recommendation on Judges: Independence, Efficiency and Responsibilities”, the “European Charter on the Statute of Judges”, the “Commonwealth (Latimer House) Principles”, and “Appointment, Tenure and Removal of Judges Under Commonwealth Principles: Compendium and Analysis of Best Practices”.
Regarding the European documents, one can readily anticipate the raising of the eyebrows, by those who will be thinking of the leading economic power houses of Europe, silently asking whether Nigeria can compare. But, the European documents are directed at all the nations of Europe – including Eastern Europe. Nigeria’s GDP is bigger than that of many western European countries (including Ireland, Norway, Denmark, Finland, Portugal, Greece, Luxembourg and Iceland), and that of any East European nation except Poland. As indicated earlier, the Judiciary cannot be the only branch of government that is left to languish in the malaise of the “Giant of Africa”, when functionaries of the other branches are remunerated at levels that compare with what obtains in Europe, if not far better.
In any event, the Commonwealth to which Nigeria belongs, also has standards-setting documents that say the same thing. And, there are countries in Africa and the Caribbean – none of them wealthier than Nigeria – that are living up to those standards.
Constitutional Law and Access to Justice
Within the Commonwealth, a leading case law on judicial salaries and pensions, is the Canadian Supreme Court judgement in Reference Remuneration of the Judges of Provincial Court of Prince Edward Island. It shares important parallels with Hon v National Assembly. They both articulate the matter of adequate remuneration of Judges as a requirement of constitutional law, particularly under the general rubric of “peace, order and good government”.
But, there is another important constitutional angle from which the Canadian Supreme Court approached its judgement. It was from the angle of Section 11(d) of the Canadian Charter of Rights and Freedoms, dealing with the right to fair trial. On that account, the Supreme Court of Canada held that considering citizens’ right to fair trial before an “independent and impartial” criminal court, inadequacy of judicial salary and pension, which compromises those basic norms of justice, is a violation of that constitutional right.
Hon v National Assembly appeared not to have been argued on the additional basis of the right of Nigerian citizens, to have their cases tried by independent and impartial courts. The focus rather, was on the perfectly sensible and admirable interest that Chief Hon, SAN (and other eminent Nigerian Barristers) should rightly have, in serving on a properly remunerated Judiciary for the benefit of the nation.
But, it must also be considered that, the further reasoning of the Supreme Court of Canada in Reference Remuneration of Judges of Provincial Court of Prince Edward Island is of persuasive authority, in any appreciation of the importance of adequate judicial salaries and pensions in Nigeria. This is because, the equivalent of Section 11(d) of the Canadian Charter of Rights and Freedoms is Section 36(1) of the Nigerian Constitution (as amended), which also guarantees for Nigerians the right to fair hearing before independent and impartial courts. Notably, Section 36(1) specifically guarantees that right – even in proceedings against “any government or authority”. It should, of course, escape no one that the “government or authority” contemplated in the provision often holds the proverbial yam and knife, as Igbo people would say, regarding matters of judicial salaries and pensions. It thus, puts in sharp focus the significance of judicial independence and impartiality that the provision guarantees as a constitutional right for all Nigerians. Hence, it becomes wholly unsatisfactory to leave to such “government or authority” an unfettered discretion over judicial salaries and pensions, which are critical elements of that basic norm of judicial independence and impartiality.
Justice Must Not Only be Done, but Must Also be Seen to be Done
“Indeed, Justices and Judges who man the Temple of Justice, are themselves victims of a great injustice. What an irony!” Obaseki-Osaghae J lamented.
But, indeed, that was a modest observation. For, the victims of the penury of Judges and the general indigence of the Judiciary, are not the Judges alone. The real victims are ultimately justice itself, and the society that it must serve. Space prevents fuller elaboration. It is enough, though, to recall the famous maxim that justice must not only be done; it must also be seen to be done. And, one can readily see how the penury of the Judiciary – in their capacity as one of the three branches of the government – victimises justice itself and the society as a whole. The picture is clear enough, from this observation of the Canadian Supreme Court in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island: “Public confidence in the independence of the Judiciary would be undermined, if Judges were paid at such a low rate that they could be perceived as susceptible to political pressure through economic manipulation, as is witnessed in many countries”.
There are stories of retired Nigerian Judges – including those from the Supreme Court – dying in abject poverty. Stories of litigants giving lifts to Magistrates, at the end of court hearings. How easily will the public to see that justice is being done? More so, when Judges are constrained to render judgement, as they must at times, against people who are neither wealthy nor powerful.
In conclusion, the judgement in Hon v National Assembly is a much overdue impetus, for the improvement of the Nigerian Judiciary. In a way, it is only the starting point.
In that regard, I strongly make the following recommendations. First, Government should accept the judgement, in the same way that the Attorney-General of the US accepted the judgment in United States v Beer (2012), where a similar judgement was rendered that brought to an end, a long-standing pay freeze of the US Federal Judiciary in 2014.
Second, the principle in Hon v National Assembly should also extend to judicial pensions, and not salaries alone. This is because financial security includes, not only protecting Judges from worries about how to make ends meet during their terms of office, but also worries about how to make ends meet during retirement.
Third, the Canadian model of periodic pay increases for Judges, should be closely studied and followed. The model comprises minor annual increases linked to the national consumer price index, but with a major review every four years, to see whether there is a need for a pay raise beyond the annual minor increases. The major review is conducted by a dedicated Judicial Compensations Commission that is “objective, effective and independent”.
Finally, during the periodic major reviews before the Judicial Compensation Commission, it is the Canadian Bar Association that represents the interest of Judges in urging major increases. The Nigerian Bar Association should play a similar role. And, lastly, the upgrading of the Judiciary should start immediately, based on the order in Hon v National Assembly. But, it shouldn’t end there.
Dr Chile Eboe-Osuji, former President of the International Criminal Court