Friday, March 28, 2003

Judicial Ethics

Judicial Ethics.
A speech given at a meeting of the Rotary Club held at City View Hotel, St John’s, Antigua on 28 March 2003 –
By Justice Don Mitchell QC
[1]        When you ask a lawyer to speak, if you want us to speak on a topic for 10 minutes, you must give us plenty of time to prepare.  But, if you want us to stand up and speak all night long, we are ready right now!  I have been given plenty of notice, so I shall limit myself to speaking for 15 minutes.
[2]        What a judge can do socially is somewhat limited.  One of the out-of-court activities that a judge is permitted to do is anything that will improve the law, the legal system, and the administration of justice.  So, I have decided to speak to you a little about judicial ethics. 
[3]        Not many of us know that on 9 December 2000, at a Judges’ Conference in St Vincent, all the judges of the Eastern Caribbean Supreme Court formally adopted and agreed to be bound by a written Code of Ethics.  A copy of this code can be obtained from any Bar Association, from the Registrar of the Supreme Court, or if every other avenue fails, from the office of the Chief Justice in St Lucia. 
[4]        The Magistrates of our region have recently, just last month, held a conference in St Lucia at which they have begun to discuss binding themselves to follow their own written Code of Ethics.  It will not be long before they adopt their own code.  We in the Caribbean are not alone in this exercise.  Most Commonwealth judiciaries have bound themselves to uphold the standards of a written code.
[5]        The Code of Ethics of the Judiciary of the ECSC consists of 5 Canons.  Let me give you the list to start off:
Canon 1.         A Judge Should Uphold the Integrity and Independence of the Judiciary.
2.         A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities.
3.         A Judge Should Perform the Duties of the Office Impartially and Diligently.
4.         A Judge May Engage in Extra-Judicial Activities To Improve the Law, the Legal System, and the Administration of Justice.
5.         A Judge Should Refrain from Political Activity.
[6]        These attributes are inextricably tied to the scriptural evolution of the mandate of the judicature.  Two commands in the Old Testament bear this out.  So, in the Book of Deuteronomy, Chap 16: 18-19, Moses enjoins his people:
To appoint Judges and Magistrates. . . these men are to judge the people impartially.”
They are not to be unjust, or show partiality in their judgment;  and they are not to accept bribes, for gifts blind the eyes even of wise and honest men, and cause them to give wrong decisions.”
[7]        The Holy Qura’an of the Muslim world bears testimony to the imperishability of these virtues.  So, at verse 135, it is written:
O ye who believe, stand out firmly for justice, as witnesses to God, even as against yourselves, or your parents or your kin, and whether it be against rich or poor; for God best protects both.  Follow not the lusts of your hearts lest ye swerve, and if ye distort Justice or decline to do Justice, verily God is well-acquainted with all that you do.”
[8]        The ideal Judge is described in the Pakistani Code of Ethics, in arresting prose, as follows:
A Judge should be God-fearing, law-abiding, abstemious, truthful in tongue, wise in opinion, cautious and forbearing, blameless, untouched by greed.  While dispensing justice, he should be strong without being rough, polite without being weak, awe-inspiring in his warnings, and faithful to his work, always preserving calmness, balance and complete detachment for the formation of correct conclusions in all matters coming before him.”
[9]     Of course, if we look to the New Testament, we are met with the daunting warning given by St Matthew, Ch.7, v.1:
Judge not, that ye be not judged.”
[10]      That should be enough to put anyone but the most persistent off the job!  And St Luke complains, at Luke Ch.11, v.52:
Woe unto you, lawyers!  For ye have taken away the key of knowledge.”
[11]      One last quote, this time from Revelations, Ch.20, v.13:
“And the sea gave up the dead which were in it;  and death and hell delivered up the dead which were in them:  and they were judged every man according to their works.”
[12]      You can tell from all the above that it is difficult to find anything encouraging in the New Testament to describe the proper function of a Judge or a lawyer.
[13]      Now, I am not going to talk to you about all of the Canons.  Some of them are quite obvious, and would be more boring than others for an after-dinner speech. 
[14]      So, concerning CANON 1, A JUDGE SHOULD UPHOLD THE INTEGRITY AND INDEPENDENCE OF THE JUDICIARY, it is only necessary to state the obvious.  An independent and honourable judiciary is indispensable to justice in our society.  In the words of the Code, a judge is called upon to participate in establishing, maintaining, and enforcing high standards of conduct, and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.
[15]      So, also, CANON 4, A JUDGE SHOULD REGULATE EXTRA-JUDICIAL ACTIVITIES TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL DUTIES AND OBLIGATIONS, this only means that a judge is permitted to engage in such extra-judicial activities that do not, in the minds of right-thinking members of the community:
a)                  cast reasonable doubt on the Judge's capacity to act impartially as a Judge;
b)                  compromise the dignity of the office of the Judge; or
c)         interfere or be in conflict with the performance of the judicial duties or the office of the Judge.
[16]      And, CANON 5, A JUDGE SHOULD REFRAIN FROM POLITICAL ACTIVITY, the Judges of the Eastern Caribbean States preside in small islands where political rivalries are often intense.  It would be clear to all that Judges should be extremely sensitive to the necessity for them not only to be absolutely non-partisan but also to refrain from any conduct that might appear to be partisan.
[17]      I propose to highlight just two of the Canons.  First, CANON 2: A JUDGE SHOULD AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL ACTIVITIES.  This means that a Judge should not:
[a] allow family, social, political or other relationships to influence judicial conduct or judgment;
[b] lend the prestige of the judicial office to advance the private interests of others; nor convey or permit others to convey the impression that they are in a special position to influence the judge;
[c] testify voluntarily as a character witness; or
[d] hold membership in any organization that practises discrimination on the basis of race, gender, religion, or national origin.
[18]      So, a Judge is called upon to be sensitive to possible abuse of the prestige of the office.  A judge must be careful to avoid the appearance of lending that prestige of the office for the advancement of the private interests of the judge or others. 
[19]      That is why judges appear a bit stand-offish at times, and unwilling to get involved in various worthy social activities.  It is not that the judge would not prefer to socialise and to get involved.  It is just that he is concerned that it might damage in the eyes of some observers the aspect of impartiality and detachment that all classes of the public and sections of society are entitled to.  Litigants might inadvertently be led to believe that by supporting the same interests, they might gain some advantage. 
[20]      The prestige of the office does not belong to the judge, it is not something that he deserves, it is something that belongs to the people, and the judge has no right to take it away from them.
[a]        Maintain professional competence in the law, and should not be swayed by partisan interests, public clamour, or fear of criticism;
[b]        Hear and decide matters assigned to him/her expeditiously and fairly;
[c]        Maintain decorum in all judicial proceedings;
[d]        Be patient, dignified, respectful, and courteous to all those who appear before him/her in an official capacity; and
[e]        Avoid public comment on the merits of a pending action.
[22]      This Canon more directly touches those who appear before a judge or magistrate in court.  It calls for judges to be patient, dignified, and courteous to all accused persons and litigants.  Patience and sobriety are important attributes of the judicial office.  A judge must zealously guard his temper.  Irascibility is to be avoided, no matter how provoked.  If he banishes his mental sobriety, he is likely to be upbraided on appeal.  In one case, the Court of Appeal used the following strong words:
It is the height of irresponsibility for any judge to take undue advantage of his judicial immunity to harass, abuse and intimidate litigants.  No language is strong enough to condemn the conduct of the Judge in these proceedings.  He had abdicated the known norms of judicial conduct and has brought the sacred duty of adjudication into disrepute.
[23]      Asking too many questions can give the impression that the Judge has descended into the arena with the lawyers.  In one English criminal case, the Judge asked a witness 495 questions, when the total combined questions asked by counsel for the prosecution and counsel for the defence was 847.  Predictably, the conviction of the accused person was quashed on appeal. 
[24]      Just a few years ago, the English judge, Sir Hugh Hallett, asked so many questions that the party who had lost appealed to the Lord Chancellor.  The judge was advised to resign.
[25]      This Canon also calls for the prompt disposal of cases.  The Chief Justice has requested of his judges to aim for a target of disposing of all trials within a maximum of 18 months of the filing of the claim.  Those of you who have had anything to do with the court system may not believe it, but the New Rules of Court are helping us in improving our disposal rate every day.
[26]      This Canon also speaks to bias and the appearance of bias.  Public confidence in the judicial process is rooted in the belief of impartial adjudication.  Anything that is capable of denuding confidence in the work of a judge must be scrupulously avoided. 
[27]      Bias and the appearance of bias call for a judge to disqualify himself immediately from trying the particular case.  The fact that a judge was retained by one of the parties while he was in private practice would, I am sure we would all agree, cause that judge to disqualify himself from trying the case.
[28]      This rule also speaks to the issue of corruption.  Corruption has been defined as the misuse of public power for private gain.  It is wider than bribery, graft, and nepotism. 
[29]      So, most of us would include as instances of corruption cases where a judge is able to abuse his office because of undue sensitivity to contempt of court, or indiscriminately awards ex-parte injunctive orders, or recklessly issues arrest warrants.  Power and responsibility do strange things to those who wield them.  Some carry them with humility, humanity, understanding and integrity, and so enhance the concept of justice.  Others show their feelings of insecurity, shallowness, and lack of confidence, by falling back on arrogance and rudeness.  They forget that these powers are not designed to fan the vanity of individual judges.  They are only to be exercised for the advancement of justice and the good of the public. 
[30]      Judicial independence is not a right or privilege of the judiciary, it is a constitutional guarantee given to the people of this State.  If it is a privilege, it is a privilege that belongs to all of us.  That is why it is the duty of every judge and right-thinking person to stand in defence of judicial independence. 
[31]      The Judicial Code of Ethics aims to get judges to concentrate their minds on the necessity and desirability of entrenching this concept in the minds of all who come into contact with the judicial process.