Melville Robertson Roberts, a Gambian Oxford-trained scholar, penned an opinion piece titled “The Misconceptions and Myths Surrounding the Judicial Officers Remuneration and Entitlements Bill 2024,” published on July 5, 2024, in the Standard Newspaper. 

Despite Roberts’ fervent assertions, his article is deficient in providing a comprehensive and balanced analysis of the proposed bill. It is replete with claims that lack empirical validation and fails to consider the broader context of public sector compensation. 

His arguments largely hinge on the misguided notion that financial incentives are the primary means to ensure judicial independence and efficiency, a perspective that is not substantiated by rigorous empirical evidence.

Despite Roberts’ credentials as an Oxford-trained lawyer and former diplomat, he demonstrates a remarkable lack of engagement with the extant literature on economics, public administration, and legal theory. His approach of merely assembling clauses from the constitution without a comprehensive understanding of their broader implications suggests a superficial grasp of the issues at hand. As such, Roberts’ piece is emblematic of a larger issue in public discourse where complex policy matters are reduced to simplistic narratives. This reductionist approach undermines the very foundations of sound policymaking. 

Furthermore, the article neglects to engage with numerous studies and expert opinions that highlight alternative solutions to the judiciary’s challenges. By ignoring these perspectives, Roberts presents a myopic view that does a disservice to readers and the public debate.

This lack of depth and critical analysis leads one to conclude that Roberts is yet another example of a third-rate scholar from a first-rate school. Such a deficiency in scholarly engagement and nuanced understanding raises serious questions about the quality of his arguments and the robustness of his conclusions. 

It is imperative that individuals who claim such prestigious academic backgrounds exhibit a level of intellectual rigour and analytical sophistication befitting their education. Unfortunately, Roberts’ piece fails to meet these standards, reflecting poorly on the institutions from which he graduated. This phenomenon is not uncommon; many individuals from elite universities like Harvard and Oxford sometimes fall short of the intellectual and practical excellence expected of them, demonstrating that prestigious credentials alone do not guarantee profound insight or expertise. 

Furthermore, the reliance on prestigious affiliations can often obscure the necessity for substantive knowledge and critical thinking. The real value of an elite education lies not in the name but in the ability to engage deeply and thoughtfully with complex issues. 

Therefore, it is disappointing to see such a missed opportunity for meaningful contribution to the public discourse. As scholars and professionals, there is a responsibility to uphold the integrity of informed and balanced debate, particularly on matters of significant public interest. Roberts’ article serves as a reminder that critical analysis and engagement with diverse perspectives are essential for robust and effective policy discussions.

There is almost too much for me to contend with in this article, but I will try my best. Here is a blow-by-blow rebuttal of the pork-barrel arguments of Mr. Roberts, who appears more like a lobbyist than a critical thinker.

Roberts writes, “The Judicial Officers Remuneration and Entitlements Bill 2024 is being tabled together with the National Assembly Salaries and Pensions Bill 2024 has somewhat created a veil that blinds the masses of the importance and crucial necessity of having an independent and robust judiciary.”

Banjul, The Gambia: building of the High Court of the Gambia – elevated view – Law Courts Building on Independence Drive- Judiciary of The Gambia – photo by M.Torres

This statement is problematic for several reasons. Firstly, comparing the judiciary to the National Assembly in terms of remuneration and benefits is a misguided approach. The judiciary’s independence is crucial, but it does not necessitate disproportionately high compensation. 

Moreover, it is essential to recognise that while judicial independence is vital, it must be achieved through balanced and sustainable means. According to distinguished American legal scholar and judge David J. Barron, judicial independence is not just about financial autonomy; it is about creating an environment where judges can make decisions free from external pressures. 

Barron (2020) explains that judicial independence can be categorised into branch independence and decisional independence, with branch independence focusing on whether the judiciary is structured to allow decisions to be made independently, such as through life tenure for judges and protections against salary reductions. 

This setup ensures that judges are not at risk of losing their jobs due to their rulings, unlike the judges in Trevett v. Weeden, who faced annual performance reviews, thus highlighting the importance of such measures in safeguarding judicial independence from external pressures. By focusing solely on financial incentives, Roberts overlooks the broader institutional and systemic reforms necessary to support the judiciary. 

Additionally, it is important to consider the fiscal implications of such increases, especially in a country with limited resources. Barbara Nunberg, a public management expert who headed the World Bank’s Public Sector Reform programme for East Asia and the Pacific, highlighted that public sector compensation reforms must strike a balance between fair remuneration and fiscal sustainability (Nunberg, 2010). Roberts’ selective argument fails to address these critical aspects.

Furthermore, this kind of approach risks creating a precedent where other public sectors demand similar unsustainable increases, potentially leading to fiscal instability.

What Roberts employs in his article more than anything else is the sin of omission. Not once, in an article about the judicial officers’ remuneration, does he discuss the potential financial burden on the state or the broader context of public sector compensation. This omission is significant because it paints an incomplete picture of the issue. For instance, the financial burden on the state could lead to cuts in other essential public services, affecting the overall well-being of the nation. 

Furthermore, it is crucial to consider the opportunity costs of allocating substantial resources to judicial compensation. According to economist Joseph Stiglitz, governments must weigh the benefits of public expenditure against the costs and potential trade-offs involved (Stiglitz, 2012). Roberts’ failure to address these trade-offs undermines the credibility of his argument. 

Additionally, by not considering the broader public sector compensation, Roberts ignores the potential disparities that could arise within the public service. The International Monetary Fund (IMF) warns that unequal pay structures within the public sector can lead to inefficiencies and decreased morale (IMF, 2016). Roberts’ omission thus leaves significant gaps in his argument. Moreover, this approach lacks transparency and fails to engage with the broader policy-making process that should involve comprehensive stakeholder consultations.

He goes on, “By no stretch of human imagination can there be comparisons between the judges of the superior courts and that of our national assembly members, especially members of the 6th legislature.” While the roles of judges and National Assembly members are distinct, the comparison is valid in the context of public expenditure and equity. The argument overlooks the necessity of a balanced approach to public sector compensation, ensuring that no single group disproportionately benefits from taxpayer funds. 

Furthermore, the challenges faced by judges, though significant, are part of their professional obligations, which should be addressed through systemic reforms rather than disproportionate compensation. Legal expert Richard Posner argues that judicial compensation must be sufficient to attract and retain qualified judges, but it must also be balanced against other public priorities (Posner, 1999). Roberts’ argument fails to acknowledge this balance. 

Additionally, it is important to consider the perceptions of fairness among different public service roles. Disproportionate compensation for one group could lead to resentment and decreased morale among others. According to public administration scholar Dwight Waldo, perceptions of fairness and equity are crucial for maintaining morale and efficiency within the public sector (Waldo, 1980). Roberts’ selective comparison does not adequately address these broader concerns. 

Moreover, this kind of selective argumentation undermines the principles of equity and justice that should guide public sector reforms.

Roberts writes, “Judicial officers have absolutely no pension scheme, don’t receive per-diems, are not paid sitting allowances for hearings, and the last time they had vehicles allocated to them was over 7 years ago.”

The absence of certain benefits for judges does warrant attention; however, the proposed bill does not inherently address these issues in a manner that guarantees fairness or sustainability. The solution should involve a comprehensive review of all public sector compensation, ensuring equitable and justifiable benefits across different roles, including judges, without unduly burdening the state’s finances or creating disparities. 

Furthermore, it is important to recognise that benefits such as pensions and per-diems are part of a broader  compensation package that must be considered holistically. According to compensation expert George Milkovich, a well-designed compensation system considers the total rewards package, including salary, benefits, and non-monetary incentives (Milkovich et al., 2002). 

Roberts’ focus on specific benefits without considering the overall package is a narrow approach. Additionally, the proposed bill should consider the long-term sustainability of these benefits. The Organization for Economic Co-operation and Development (OECD) emphasizes that pension schemes and other long-term benefits must be designed to ensure fiscal sustainability and intergenerational equity (OECD, 2011). 

Roberts’ argument does not adequately address these long-term considerations. Moreover, there is a need to benchmark against best practices in other jurisdictions to ensure that the benefits are aligned with international standards.

Roberts laments, “A lot of Gambians, including myself, have complained about the slow pace of justice dispensation in our courts and the frustration and pain it brings.”

While the manual recording process is outdated and inefficient, the solution lies in modernising the judicial system with better technology and support staff, rather than solely increasing judges’ compensation. Investment in judicial infrastructure and administrative support would address the root cause of delays more effectively. Moreover, the slow pace of justice is often due to systemic inefficiencies that cannot be resolved by financial incentives alone. 

According to legal scholar Brian Z. Tamanaha, judicial efficiency requires comprehensive reforms that address procedural bottlenecks and administrative inefficiencies (Tamanaha, 2004). Roberts’ focus on compensation overlooks these broader systemic issues. 

Additionally, investing in technology and support staff would improve the overall functioning of the judicial system. The American Bar Association (ABA) highlights that technology can significantly enhance the efficiency and accuracy of judicial processes (ABA, 2024). By not considering these modern solutions, Roberts’ argument remains limited in scope.

Roberts claims, “The last bastion of hope for our nation is vested in the judicial arm of government that curbsand checks the excesses of both the National Assembly and the Executive.”

Judicial independence is crucial, but it is not solely maintained through increased remuneration. Structural safeguards, transparent appointment processes, and strict adherence to ethical standards are more effective in ensuring judicial independence than financial incentives. 

Overemphasis on financial incentives could undermine public trust, suggesting that judges might be swayed by monetary considerations. According to legal scholar Laurence Tribe, judicial independence is primarily protected through institutional safeguards and ethical standards, not through financial incentives (Tribe, 1985). Roberts’ argument fails to recognise these critical elements. 

Additionally, the perception of judges being influenced by financial incentives could erode public confidence in the judiciary. Public administration expert David H. Rosenbloom warns that public trust in government institutions is essential for their legitimacy and effectiveness (Rosenbloom, 2003). By focusing on financial incentives, Roberts risks undermining this trust.

Supreme Court in Banjul

Moreover, it is essential to ensure that judges are selected and appointed through transparent and merit-based processes. Scholars such as Shimon Shetreet and Hiram E. Chodosh emphasised that transparent and merit-based judicial appointments are crucial for maintaining judicial independence (Shetreet & Chodosh, 2024). Roberts’ argument does not adequately address these foundational aspects.

Roberts adds, “Imagine the long-term health conditions that most of our judges suffer, most notably arthritis due to the constant and repeated handling of pen and recording every sense and nonsense that happens in court.”

Health and security concerns are valid, but they should be addressed through targeted health care plans and security arrangements rather than broad financial incentives. Specific programmes aimed at the well-being and protection of judges would be more appropriate and fiscally responsible. 

Additionally, it is important to recognise that health and security issues are common in many professions and require targeted solutions. According to occupational health expert Dr. Laura Punnett, who is a Professor Emeritus and Distinguished University Professor at the University of Massachusetts Lowell, effective occupational health programmes address specific risks and provide targeted interventions to improve worker health (Punnett, 2009). 

Roberts’ focuson financial incentives is a narrow approach. Moreover, tailored health care plans and security arrangements would directly address the unique challenges faced by judges. The World Health Organisation (WHO) emphasises that targeted health interventions are more effective in addressing specific occupational risks (WHO, 2010). 

By proposing broad financial incentives, Roberts overlooks these targeted solutions. Furthermore, it is essential to ensure that these health and security measures are sustainable in the long term. The International Labour Organisation (ILO) highlights that sustainable occupational health programmes require ongoing support and resources (ILO, 2013). Roberts’ argument does not consider these long-term sustainability issues.

Roberts argues, “The fact and the undiluted truth is that we as a people now have confidence in our courts and not only but we can see and feel the independence of our judiciary.”

While the constitution mandates certain provisions for judicial remuneration, it does not justify disproportionate or unsustainable benefits. Interpreting constitutional requirements should balance pragmatic fiscal policies and broader public interest considerations. Misrepresenting constitutional mandates to justify excessive benefits is misleading and lacks scholarly rigour.

Supreme Court Chief Justice Hassan Jallow

According to constitutional law expert Mark Tushnet, constitutional provisions must be interpreted in a way that balances legal mandates with practical implications (Tushnet, 2010). Roberts’ interpretation lacks this balance. Additionally, it is important to consider the broader public interest when implementing constitutional mandates. 

Public finance expert Richard A. Musgrave argues that public policies must be designed to serve the broader public interest and ensure fiscal responsibility (Musgrave, 1959). By focusing solely on judicial remuneration, Roberts overlooks these broader considerations. 

Furthermore, the implementation of constitutional mandates should be done in a way that ensures long-term sustainability. The United Nations Development Programme (UNDP) emphasises that sustainable development requires policies that balance current needs with future implications (UNDP, 2024). Roberts’ argument does not adequately address these sustainability issues.

Conclusion

Roberts’ defense of the Judicial Officers Remuneration and Entitlements Bill 2024 is fundamentally flawed:

1. Selective Argumentation: Roberts selectively highlights the challenges faced by judges while ignoring broader fiscal implications and equity among public servants. This selective approach undermines the credibility of his argument.

2. Lack of Comprehensive Solutions: His proposed solutions focus narrowly on financial incentives without addressing systemic inefficiencies or proposing holistic reforms. A more comprehensive approach is needed to address the root causes of the issues faced by the judiciary.

3. Misrepresentation of Facts: Roberts misinterprets constitutional provisions to support an indefensible increase in judicial remuneration. This misrepresentation is misleading and lacks scholarly rigor.

While the challenges faced by the judiciary are real and warrant attention, the solutions proposed in the bill are neither balanced nor sustainable. A more scholarly approach would involve comprehensive reforms that address systemic issues, ensuring fairness and efficiency across the public sector. It is crucial to consider the broader implications of public sector compensation and ensure that any reforms are fiscally responsible and equitable.

Final Thoughts

Roberts’ piece is not merely a poor defence of the bill but an exercise in selective argumentation and misrepresentation. The Judicial Officers Remuneration and Entitlements Bill 2024, as it stands, fails to withstand rigorous scrutiny and must be re-evaluated in the interest of fiscal responsibility and equitable public sector reform. 

Indeed, if Mr. Roberts aspires to a judicial appointment within the Barrow administration, he should pursue it through appropriate channels rather than disguising a polemic as an objective analysis. To portray this article as an impartial commentary, cognizant of the prevailing economic conditions in The Gambia, is both intellectually dishonest and ethically reprehensible. As scholars, we must not obfuscate the truth. The integrity of academic and policy debates relies on rigorous analysis and honest engagement with all pertinent data and perspectives. It is only through such meticulous diligence that we can hope to formulate effective and just policies.

By Arfang Madi Sillah, 

Washington DC

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