THE ADVOCATE, THE MAGISTRATE/JUDGE AND THE COURT REGISTRAR
The arm of justice is wielded and guided by a number of principal actors intervening at various levels, with various degrees of influence and power. The main actors here include the Magistrate and Court Registrar (Clerk) on one hand and the Lawyer, or Advocate on the other. Whilst the lawyer stands alone with his client or cause, The Magistrate and the Court Registrar work together with the registrar assisting the magistrate through the execution of his administrative duties. The Magistrate here in our systems consists of the State Counsels of the Legal Department and the Bench Magistrate often referred to as the Judge. Though they are both cut from the same cloth, they however perform differing roles.
A Lawyer is defined by the 9th Edition of the Black’s Law Dictionary as, “A person who is licensed to practice law”. This very succinct definition of the term provides a basis which can be complemented with other recognized terms. An Advocate is defined as, “A person who assists, defends, pleads or prosecutes for another.” In English Law, the term Barrister is used in reference to a “Lawyer who is admitted to plead at the Bar and who may argue cases in superior Courts”, as per the Black’s Law Dictionary, 9th Ed. All these terms are synonymous and denote practitioners who are most often than not, organized into a Bar Association. In Cameroon, the practice of law is governed and organized by the law no 90/059 of 19th December 1990 governing Practice at the Bar. It is complemented by decree no 41/DPJ/SG/MJ of 12th April 2005 of the Vice Prime Minister, Minister of Justice and Keeper of the Seals Publishing the Internal Rules of the Bar.
Whilst not explicitly defined, the characteristics of legal practice at the Bar are enumerated in section 1 of the 1990 law outlining the duties as,
“1) Assisting, representing the parties before the law courts, conducting suits, pleading and giving legal advice;
2) Following up on the execution of court decisions, in particular instituting and following up on extra judicial procedures, receiving payments and giving discharge thereof and instituting legal proceedings on behalf of one of the parties.”
The Magistrate is a judicial public officer appointed or (elected in the US system) to hear and decide legal matters in Court, Black’s Law Dictionary, 9th Ed. He is the person who states the law by rendering a decision based on the facts placed before him or her. Being a legal practitioner in every sense of it, certain legal systems reserve this position to practicing lawyers (or law professors) having a required minimum period of practice at the Bar. In Cameroon, whilst this is equally permissible, it is however very uncommon, if at all it has ever been sought by practicing lawyers.
The Magistracy in Cameroon falls squarely beneath the ambit of the judiciary, governed mainly by law no 2006/015 of 29th December 2006 on judicial organisation, modified and completed by law no 2011/027 of 14th December 2011 which defines the various jurisdictions of law. Note that some of these jurisdictions have specific laws governing them, particularly the Supreme Court, the Special Criminal Court, the regional audit chambers (chambres regionaux de comptes) the Administrative and Military Tribunals and the Customary Courts.
The Court Registrar (Clerk)
The Court Registrar or Clerk is a court officer responsible for filing papers, issuing processes, keeping records of court proceedings, all in a bid to ensure that the judicial system is properly administered under the supervision of the Judge of the Court. Being part of the judiciary, their position is stated in sections 14, 16 and 20 of the 2006 law on judicial organization as defined by the various jurisdictions. Their status is however defined by decree N° 2011/020 of 4th February 2011 on the Special status of Court Registry Officials.
The common denominator between the co actors
Having defined the protagonist in their separate criteria, to illustrate their functions, we shall see how their relationship works to collectively enhance the administration of justice. We shall observe that, all three players are vital ingredients for the efficiency of the judicial system. While they play separate roles, they all formerly interact in the performance of their duties to facilitate access to justice. In the present context, the common factor that binds them is the trade of Justice to litigants within the confines of the court house. Their interaction being very frequent whether in or out of a court session, usually raises various questions as to the relationship that should exist between the parties, in order for justice to be administered fairly and expediently. In this consideration, it is worth noting the levels of independence and interdependence of either party which usually organizes and defines their collaboration. However, it remains that the Lawyer is often on one end, and the rest of the parties on the other, giving rise to a host of rights and responsibilities binding to either party. These three actors of the Court are bound by a common code of conduct founded on solemnity, discretion and temerity, by virtue of the functions the hold. This is the reason which underlies the oath taking process all three corps are subjected to before commencing practice. Hence in discharging their duties, they have to take into consideration the positions they occupy, and the role they plays as actors in society.
Duties of a Lawyer
A lawyer’s duty to the court relates to his or her status as a professional who serves, not only clients, but also the public interest. Note here that this duty is to the institution of the Court, and not the person of the judge holding this office. Historically, a professional was distinguished from a tradesperson by a public declaration – demonstrated today by the oath taken at admission to the Bar – to serve others and devote their intellect and efforts to the public good. This was captured by E.W. Roddenberry’s 1953 article Achieving Professionalism in which he states:
It was probably inevitable that certain occupations requiring public avowals of faith or purpose should become known as professions. Originally, there were three: medicine, law, and theology. They were dignified by that title and set apart from other occupations because they were more than a livelihood: they represented a calling to some higher satisfaction than a commercial gain…Although rigorous asceticism was seldom required, doctors, lawyers and clergymen demonstrated enough selflessness down through the years to gain general respect.
A lawyer’s duty to the court also relates to the profession’s independence, or what has been described as “the high degree of autonomy that lawyers experience from external controls other than those imposed by self-regulation.” Self-regulation is a privilege that comes with substantial obligations that are intended to protect the rights of individuals. David W. Scott, Q.C. set this out as follows: The Bar is independent of the State and all its influences. It is an institutional safeguard lying between the ordinary citizen and the power of the government. The right to counsel, which as mentioned, is inter-related with the law of privilege, depends for its efficacy on independence. … In order to fulfill the heavy responsibilities imposed on lawyers as officers of the court, a meaningful and practical environment of independence is essential. It is always within the framework of this relationship that the commercial interest of the client and the lawyer’s interests must give way to the overriding duty to the court. This is not an obligation shared by other professionals…Our duties as officers of the court could not possibly be discharged other than in an environment of total independence. In other words, a lawyer may not be able to act in a way that serves the client’s best interests if doing so would put the administration of justice and the community’s confidence in the profession at risk. This emphasizes the need to respect the rules of ethics governing the profession, as well as the interaction with the judiciary.
Lawyers must respect the court. Respect comes in all forms – preparedness and timeliness are one aspect of consideration. Being familiar with the facts and law applicable to your case, and knowing your client’s position is the most fundamental display of respect for the court process. This duty to the court is, in effect, an overlapping duty of competency we have to the client. With regard to the attitude to adopt in Court, a lawyer should not waste time on irrelevancies, even if prompted to do so by the client. He should not make frivolous and vexatious objections. In addition, requests for adjournments should not be taken lightly. Adjournments of cases can cause disruption to court sittings, inconvenience to jurors and witnesses and also as a result of the passage of time cause problems for a witness’s memory. In essence, adjournments drain court resources.
Not appearing for court is a common failure of a lawyer’s duty to the court. It is not an infrequent occurrence when a lawyer does not appear before the court because the client has so instructed the lawyer (either because the claim will not be disputed or the client does not want to spend further money for various reasons). However, despite a client’s instructions, it is a lawyer’s duty to appear before the court if he or she is counsel of record. This duty remains however cognizant of the counsel’s inability that could arise from a number of reasons. Section 28 of the Law no 90/059 of 19th December 1990 governing practice at the Bar provides for punctual appearance of advocates in proper attire for briefs which they have accepted, or a replacement by another counsel, or notification to the Court of such an absence.
The Lawyer and the Magistrate
In Cameroon, the Court system is governed by law no 2006/015 of 29th December 2006 on judicial organisation, modified and completed by law no 2011/027 of 14th December 2011. The Court is the arm of justice that interprets and administers justice, through its representatives who are judges and magistrates, in the name of the People (section 2 (1)).In performing this very important duty, judges are faced with not only the law, and the conscientious interpretation of it, but also the advocates’ presentation of the case. In this regard, how they interact with one another in the Courtroom, and without has been a matter of great debate. Owing to the independence each party holds in their profession, Lawyers and judges have a primary duty of respect and courtesy to one another. Within the courtroom setting, the judge listens, while administering order in session as the lawyer speaks, for the most part. The judge however maintains order in Court. The lawyer’s speech is the most sacred right and tool for presenting their case for appreciation by the Court before which they stand. In this light therefore, it would be foolhardy for a judge to attempt to stifle a lawyer’s freedom of expression. The law protects this right in section 19 (2) of law no 90/059 of 19th December 1990 organizing Practice at the Bar which states explicitly, “Subject to the prerogatives of the President of the Court relating to order in Court and to the conduct of hearings, no limits shall be set on how long he may speak”. Whilst passion may sometimes cause outbursts, the lawyer is bound by his honor and deference to the court to maintain decorum and propriety. A good advocate knows every case could go both ways, and should thus be prepared for this eventuality. There are various avenues to contest and review judicial decisions and the actions of judges in open Court. However, outright displays of impropriety from judges (or lawyers) need to be cautioned by lawyers with a benefit of seniority, especially in the local setting. A good example is an incident where a judge denied a pupil advocate in my firm the right to plead her case in open Court at the Ekounou Court of First Instance before the Clients. This was a gross violation, and ought to have been redressed by the more senior advocates present at that hearing. This solidarity in purpose inspires greater respect for the corps.
In certain circumstances, the lawyer and the judge are partners. For cases of clarity, the lawyer aids the judges by shedding light on certain matters which are novel, or very technical on specific legal subjects. Also, the State Counsel prosecuting is usually called upon to collaborate with the civil claimant having suffered prejudice. This calls for a frank collaboration from both sides, for the proper administration of justice. The lawyer is supposed to ensure that this is done without bias and in the strict interest of the victim they’re holding brief for. In general terms, the perception that the judge is superior to the advocate is gravely erroneous. Its true that the institution of the Court and Justice is sometimes daunting, but the advocate and the judge are both equal, in the independent roles, ensuring that each side respects the norms that guide the administration of justice in the Courtroom.
The Lawyer and the Court Registrar
The court registry is a public service in a jurisdiction where many duties are fulfilled by a team of civil servants comprising registrars also called clerks and secretaries. A registry is the gateway through which everything goes in and out of jurisdiction: persons, files or other material. The “petit Robert” defines it as “an office where court deeds and judgments are kept”. By extension, it also receives payment of filing fees and issues other procedural and administrative deeds to lawyers and clients. According to EVA Emile, former registrar in chief of the Cameroon Supreme Court, it is a work unit inside a jurisdiction several procedural acts are accomplished under the control, coordination and the responsibility of the Registrar in chief. The Registrar in chief is also the custodian of judgments whose copies he delivers after registration, when needed. In certain cases, the registrars may be charged with drafting Court judgments under the strict supervision of the ruling magistrate. Thus introducing the registrar in chief, the latter is in fact the manager of the registry and his functions are soundly defined by law. Therefore the registrar in chief is considered by some as a whole institution and this shows the importance of studying his functions. In respect of this the law n° 2006/015 of 29 December 2006 organizing the Cameroon judicial system also states in sections 14, 16, 20 that every jurisdiction must have in its composition a court registry headed by a register in chief whose status is defined by law and regulations in the cases of the Court of First Instance, the High Court and the Court of Appeal respectively.
They are catalysts of the judicial system, who may render it strong or weak, depending on how they perform their duties. This is crucial for the administration of justice. They are however the subject of numerous misunderstandings with lawyers. The nature of interaction is meant to be cordial and mutually respectful. These important actors of the judicial system are usually the subject of numerous misunderstandings usually with lawyers. Being the primary interface for access to judicial documents and court files, they have been observed to over exert their influence. This may be a response to a spite from advocates who tend to consider them as mere ‘secretaries’ without the requisite knowledge and training to perform their lofty tasks of advocacy. This is however not the case, as the machinery of justice can only ever effectively operate if the main actors are fully and properly trained and apt to serve the cause of justice to the people.
This example reveals a daily struggle that opposes these two very close collaborators in the legal profession. Lawyers and court registrars have a duty of courtesy and respect towards each other. The former ought not to disrespect and underrate the career path and profession of the latter, who owe to the former a duty of professionalism and expediency and transparency in discharging their duties. Its is commonplace however to see advocates being held to ransom by an unfriendly registrar or clerk just because they have the power and control over court records, which happen to belong to public records accessible to all who are authorised. In the interest of true justice and efficiency, corrupt practices ought not to be tolerated by either party. Court deeds and documents, filing and registration fees are commonly inflated, or in some instances offered in excess to ‘facilitate’ matters. The continuous practice has led to its becoming normal and acceptable, whereas this isn’t what should obtain. The Lawyer being an independent practitioner cannot use his independence to frustrate the Court Registrar. In the same vein, registrars, being civil servants, should not be used as instruments of indelicate judges to prevent the public and lawyers from gaining unrestricted access to public records, and every facility in the court system in a timely manner.
In conclusion, one observes that, all three functions oblige the performance of justice in every system. How they interact will determine the quality of services users of the judicial system may enjoy or suffer. The interdependent nature in the performance of their separate duties calls for good knowledge and understanding of each person’s duties, the procedures and respect for the integrity of each actor. Whilst the Court Registrars are appointed court officials and subordinate to the authority of the Magistrate/Judge, the lawyer is an independent professional whose livelihood depends on his /her ability to serve clients properly, while earning the respect and confidence of the society in order to enjoy an autonomous platform to sustain the financial and social standing of the law firm. The rules of ethics and respect for each institution by the key players, be it the lawyer, judge or court clerk should be unequivocal to guarantee a successful and viable judicial system which offers fair and balanced decisions in the interest of the State and the People.
Mary Concilia Anchang
Onambele, Anchang & Associates