Judges Must Deserve Respect

EVERYONE WANTS TO REPECT JUDGES…THEY MUST DESERVE IT!

The Late Chief Justice of South Africa, Justice Ismail Mahomed had this to say in his address to the International Commission of Jurists in Cape Town on the 21st July 1998 on “Independence of the Judiciary”:

“The independence of the judiciary and the legitimacy of its claim to credibility and esteem must in the last instance rest on the integrity and the judicial temper of Judges, the intellectual and emotional equipment they bring to bear upon the process of adjudication, the personal qualities of character they project, and the parameters they seek to identify on the exercise of judicial power.”


The Judge President of the High Court of Zimbabwe, Madam Justice Rita Makarau, while opening the 2009 High Court Year in Harare complained among other things that:

There was a lack of respect for the Judiciary by lawyers
Judges and Lawyers were allowing themselves to be affected by the political divisions in the country in their work
Lawyers brought election petitions without any basis
Lawyers criticized judges in foreign media
The Judiciary had tired of turning the other cheek

The Deputy Chief Justice Mr. Justice Luke Malaba was on the other hand busy in Bulawayo delivering his own address to open the legal year in Bulawayo. Justice Malaba’s in his speech acknowledged that the Bulawayo High Court had struggled with its court roll and indicated that there could have been better performance. He noted that the delay in the delivery of justice would in itself harm the reputation of the Judiciary in the eyes of the public. He expressly noted that some judges were busy doing their personal business during work times and this compounded the already congested court backlog.

As a parting shot, the Learned Deputy Chief Justice expressed his views about the SADC Tribunal decision in the Campbell matter and came to the conclusion that the Tribunal should not have heard the matter as they had not exhausted domestic remedies

In both instances, the Learned Judges have raised major issues. Both speeches raise important issues regarding legal professional ethics, judicial ethics, independence of the legal profession and independence of the judiciary itself. These issues are so interrelated that there will be no significant progress in the delivery of justice in Zimbabwe unless each of these issues has been satisfactorily and honestly resolved. Legal ethics do not take root outside an independent legal profession and neither do judicial ethics find life where judicial independence is long a distant memory.

Respect for Judges: Lawyers have a duty to be courteous at all times and this duty includes Judges and the Court

It is an ethical requirement that lawyers show respect to the Judiciary. In fact the duty is a lot wider and is set out as follows by Lewis in his seminal work on Legal Ethics, states:

“Personalities are infinitely various and not every practitioner is of so even-tempered a nature as to find it easy to be courteous in all his dealings. The legal profession undoubtedly imposes strains both mental and nervous upon those who practise it and it is exceptionally easy to allow these strains to reveal themselves in one or other expression of feeling which involves discourtesy.
The rule is this-however hard the disputation, however tough and unyielding the negotiation, however untruthful the witness, however discourteous, rude, even insolent the opposite number to an exchange, however neglectful, or stupid the subordinate, there is no room for anything but punctilious courtesy on the part of the practitioner.”

The IBA General Principles for the Legal Profession adopted on 20 September, 2006 state in Article 2:

“A lawyer shall at all times maintain the highest standards of honesty, integrity and fairness towards the Court, his or her colleagues and all those with whom he or she comes professionally into contact.”

Any failure to show due respect especially in the course of the matter may in fact result in the lawyer being charged with contempt of court. Judges have inherent power prescribed by law to discipline lawyers in this regard. The example given by the Learned Judge President of a young lawyer failing to give way to a judge in the corridor in fact lightened the matter. The failure to give way may result in fact from simple poor manners of individual lawyers rather than their contempt for judicial office. But a Judge who suffers this from a lawyer must be in a position to assert his or her authority immediately. The judgment delivered by Justice Gillespie in the matter Felicity Mashinya v Scanlen and Holderness in the late 90s regarding the tone of a letter written by Mashinya’s lawyer provides ample authority.

It is not a power that is resorted to by an unduly sensitive judicial officer or by one seeking to hide behind the judicial cloak to silence dissent or legitimate criticism. The temptation to use contempt of court proceedings to silence dissent is both unlawful and unconstitutional.

Is the Respect a blank cheque?

The lawyer is ethically bound to show deference to Authority without abandoning his duty. As Lewis at page 14-15 puts it:

“The duty upon the practitioner is to demean himself with propriety before authority, but courageously to maintain his independence and to uphold the rights of his clients.”

Lewis further expands on this duty and states at page 214 that:

“Although proper respect for the court or other tribunal must always be preserved, it is not required of a practitioner to be in any way subservient or servile. It is not incompatible with the respect of the Bench for the attorney to uphold the dignity of the profession and to insist upon his rights and upon those of his client.”

In the old matter In re: Mackenzie an attorney appeared May, 1849 before Mr. Justice Menzies, who had a reputation for discourtesy towards counsel. It is reported that the attorney, Mr. Kift exasperated by his treatment by the Learned Judge addressed the court as follows:

“My Lord, no man is more anxious to pay all possible respect to the Court than I am; no man is more anxious to give the Court every possible satisfaction than I am; but, my Lord, in my endeavours to do my duty, I submit that I am entitled to be treated by your Lordship with common courtesy-and, my Lord, if I am to be worried by your Lordship’s discourteous treatment, I shall be unable to give the Court that satisfaction which I am anxious to give.”

The Judiciary owes its respect from the fact that it performs a certain function in our constitutional democracy-the adjudication of disputes without fear or favour. The function is performed without armies to enforce the decisions of courts. Their esteemed position in society encourages the general public to obey judicial decisions. It is for this reason that veritable titles have been invented for judges and magistrates. They occupy a respectable position in our society. With this respect comes an obligation which is that judges must be beyond reproach-in both their professional and individual conduct.




Lubet, in his article “Judicial Ethics and Private Lives” (1984-85), 79 NW University Law Rev, 983, observed:

“In a democracy, the enforcement of judicial decrees and orders (of courts) depends upon the public cooperation. The level of cooperation, in turn, depends upon a widely held perception that judges decide cases impartially. Should the citizenry conclude, even erroneously, that cases were decided on the basis of favoritism or prejudice rather than according to law and fact then regiments would be necessary to enforce judgments.”

In Deuteronomy 16:18-20, the Almighty said-

“You shall appoint judges and officials throughout your tribes to administer justice for the people. You shall not distort justice. You must be impartial. You shall not take a bribe; for a bribe blinds the eyes of the wise and twists the words even of the just.
Justice, and justice alone, shall be your aim, that you may have life and possess the land which the Lord Your God is giving you”.

In the Holy Scriptures land is the reward for doing Justice!

Judges derive their respect and high esteem from their perception as independent, impartial officers with integrity. That has always been their source of power from times immemorial.
The Learned Deputy Chief Justice in his address in Bulawayo put his finger on the pulse when he noted:

“There is also no doubt that pursuit of personal business by a Judge during the time he or she is expected to be performing judicial work cause disrespect for the judicial work, cause disrespect for the judicial officer in the minds of legal practitioners and litigants who have to take other people’s days in court by having their cases postponed…A poorly run judicial system will in time undermine public confidence in the entire system of government.”

But What Constitutes this Independence of the Judiciary?

Hon. Bernard L. Shientag in his Benjamin N. Cardozo Memorial Lectures, said:

“There can be no government of law without a fearless, independent judiciary. The independence of the judge is the chief of all the cardinal judicial virtues. He must be entirely free from all external influence and subservient only to his own conscience.”

In the Indian Supreme Court decision in Union of India & Ors. Vs. Pratibha Bonnerjea & Anr. (1995) 6 SCC 765, Ahmadi, and C.J., observed:


“Independence and impartiality are the two basic attributes essential for a proper discharge of judicial functions. A Judge of a High Court is, therefore, required to discharge his duties consistently with the conscience of the Constitution and the laws and according to the dictates of his own conscience and he is not expected to take orders from anyone. Since a substantial volume of litigation involves government interest, he is required to decide matters involving government interest day in and day out. He has to decide such cases independently and impartially without in any manner being influenced by the fact that the Government is a litigant before him…He, therefore, belongs to the third organ of the State which is independent of the other two organs, the Executive and the Legislature. It is, therefore, plain that a person belonging to the judicial wing of the State can never be subordinate to the other two wings of the State. A Judge of the High Court, therefore, occupies a unique position under the Constitution. He would not be able to discharge his duty without fear or favour, affection or ill will, unless he is totally independent of the Executive, which he would not be if he is regarded as a government servant. He is clearly a holder of a constitutional office and is able to function independently and impartially because he is not a government servant and does not take orders from anyone.”


The converse is that when Judges cease to be perceived as independent and impartial, they lose respect of both practitioners and the general public. I do not think it needs a forensic or empirical study to determine where the Zimbabwean Judiciary sits in this regard. The Bangalore Principles of Judicial Independence state as follows regarding independence of a judge:

“Judicial independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects…
1.1 A judge shall exercise the judicial function independently on the basis of the judge's assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.”

The main reason why judges have lost respect is related to their perceived failure as a group to discharge their duties in an independent and impartial manner especially with regards to matters that involve politics and land. The Judge President herself in fact admitted that judges were being affected in their work by political matters. What she failed, regrettably to appreciate is the fact that:
Lawyers can belong to political parties and even hold political office
Lawyers are not required to be impartial. They do not decide matters.
Judges must be political eunuchs who do not participate in any political roles. As Lord Bingham put it: a judge should be a political eunuch!

Every day, lawyers holding political offices have appeared in our courts. But no judge should hold political office while serving as a judge. To equate the role of judges and lawyers in this instance is wrong in law.

The case of Law Society of the Transvaal v Mandela illustrates the point clearly: that the pursuit of political beliefs does not make a lawyer unfit to perform his duties as a lawyer. But such pursuit of political beliefs by a judge is unlawful and an abandonment of duty. Nelson Mandela had been convicted of furthering the ideas of communism and propagating the idea of removing the government of the Union of South Africa from office by unlawful means. Subsequently, his law society sought to have his name removed from the roll of attorneys because of this conviction. In a 1954 decision, the Appellate Division of South Africa dismissed the petition and found that:

“The sole question that the Court has to decide is whether the facts which have been put before us and on which the respondent was convicted show him to be of such character that he is not worthy to remain in the ranks of an honourable profession. To that question there can, in my opinion, be only one answer. Nothing has been put before us which suggests in the slightest degree that the respondent has been guilty of conduct of a dishonest, disgraceful, or dishonourable kind; nothing that he has done reflects upon his character or shows him to be unworthy to remain in the ranks of an honourable profession. In advocating the plan of action, the respondent was obviously motivated by a desire to serve his fellow non-Europeans. The intention was to bring about the repeal of certain laws which the respondent regarded as unjust. The method of producing that result which the respondent advocated is an unlawful one, and by advocating that method the respondent contravened the statute; for that offence he has been punished. But his offence was not of a “personally disgraceful character”, and there is nothing in his conduct which, in my judgment, renders him unfit to be an attorney.” [Per Ramsbottom J]

And yet, a judge who is swayed in his work by politics of the day commits serious misconduct that requires that he be banished immediately from the hallowed seat of justice.


Further, lawyers cannot be associated with the cause of their clients. That is a cardinal rule on the independence of the legal profession. It is set out in the IBA principles as follows in Article 7:

“The lawyer is not to be identified by the authorities or the public with the client or the client’s cause, however popular or unpopular it may be.”

So, a lawyer does not become an MDC lawyer by reason that he represents MDC and neither can he become a Zanu PF lawyer by reason that he acts for a member of Zanu PF.

Criticism of Judges
Judges are not gods. They are human beings appointed to serve in public office and are required to account for the enormous power which they exercise. This is called judicial accountability. As the Late Chief Justice Ismail Mahomed put it:

“Judicial power is potentially no more immune from vulnerability to abuse than legislative or executive power but the difference is this: the abuse of legislative or executive power can be policed by an independent judiciary but there is no effective constitutional mechanism to police the abuse of judicial power. It is therefore crucial for all judges to remain vigilantly alive to the truth that the potentially awesome breath of judicial power is matched by the real depth of judicial responsibility. Judicial responsibility becomes all the more onerous upon judges constitutionally protected in a state of jurisprudential solitude where there is no constitutional referee to review their own wrongs.”

Lawyers are entitled like any other citizen to criticize the legal systems, the laws that are enacted, the decisions and conduct of judges etc. The ethical requirements are only that the criticism should be temperate and in good faith. The criticism can be done by an individual lawyer or as a group. It may be a general criticism or a specific relating to a particular matter. With the right to criticize comes the converse obligation on lawyers to defend the administration of justice should it come under undue attack. The defence does is only to the extent that it is necessary to ensure that the administration of justice does not come into disrepute. It is not by any means required to be a defence of a particular judge’s reasoning process or conclusion. In order to forestall the uneducated criticism of court decisions, some courts now publish media summaries with the delivery of important judgments so as to provide some lay-guide on what the case was about; the law applied and the outcome. These have reduced the level of poor reporting which usually sparks wrongful criticism.

Justice Makarau complained that about criticism by certain lawyers that there was no rule of law in Zimbabwe. This criticism she said is made in the foreign press. The Learned Judge President appears to imply that the criticism is wrong because:
The use of foreign press undesirable
The lawyers who complain in the foreign press actually get most of their orders from the courts they complain about.

On the first ground, the Learned Judge President does not raise any basis for limiting freedom of expression to the local press, unless she started off on the common premise within certain circles that the foreign press is an “enemy of the state”. This hopefully, did not influence her thinking as her court was approached several times to determine the rights of foreign journalists being deported illegally.

Secondly, the Judge President would be able to take judicial notice of the absence of independent daily press in the country. There is no alternative electronic media. The Daily News case judgment of the Supreme Court displays the role played by the Judiciary in consolidating this position.

Thirdly, in the fast globalizing world we live in, the strict demarcation of borders in the flow of news and opinions is non-existent. The judges who received satellite dishes from the Reserve Bank would surely appreciate how much they can at the press of a soft button invite the BBC, Sky News, Al Jazeera, CNN, Euronews and many others into the comfort of their homes, farms or chambers.

The second part of the Judge President’s criticism lacks empirical or statistical analysis of what she said making it difficult for one to agree with her. I wonder whether the statement she made answers the criticism by lawyers that:
Orders are not being granted in “sensitive matters” (land and political cases);
When orders are granted, they are not obeyed and contempt of court proceedings have never achieved anything.

The Role of Criticism

It is right to recall what Lord Denning MR said 23 when the then Mr. Quintin Hogg QC MP launched a broadside in the press against a judgment of the Court of Appeal:
"It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.
Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right". “
The writer will not debate the decision with the Deputy Chief Justice about the SADC Tribunal decision but it is salutary to note that there is a standing convention that judges do not criticize decisions of Appellate courts especially in matters the judge sat in. That old wisdom is not invaluable. Judges of the High Court may have serious views about decisions of the Supreme Court, but we do not want to see the day they will criticize the higher court for overturning them. It has long been accepted that final courts are infallible. They are infallible because they are final. If there was a higher court than the Supreme Court, many of its decisions would have been reversed too.

It is unhelpful that the Deputy Chief Justice gave his views attacking a decision that the Government of Zimbabwe has already indicated its desire to ignore. The attack regrettable gives fuel to a decision to undermine the rule of law.

Conclusion
Lord Bolingbroke put it no better than most when he said of the legal profession:
“The practice of law, in its nature the noblest and most beneficial to mankind, in its abuse an abasement of the most sordid kind.”
It is our hope that the Bench and the Bar will find the ethical compass required to deliver justice to all.