2017 legal year: Of judges and the ‘borrowed’ chair

THE opening of the 2017 legal year is important to the legal fraternity and world of litigation — real court time is ticking. It was a timely reminder to the arbiters of our disputes and chief exponents of our constitutional transformation that their office is one of a worktable than a resting place.

It offered everyone the pleasure of following a first-rate institutional evaluation through the remarks of the Chief Justice ( CJ) on judicial aptitude, independence and posterity.

The remarks remind us to be very worried about lack of decisiveness on the part of judges, but also forces us to take stock of our interactions with the judges.

I agree it would be a mistake for me to ignore the constitutional roles of our judges.

Judges play a pivotal role in adjudicating on disputes among citizens and non-citizens. How strong, is the evidence that one judge has not been performing as expected of all judges?

We have a few confirmation from the Chief Judge, a chronology. Last year. And this year. No improvement.

Judicial qualities are considered grand and countries like South Africa have guidelines for judges on how to maintain certain virtues.

Zimbabwe has a code of conduct for judges. Shientang in his seminal work, “The Personality of a Judge” states that “there is nothing more distressing than the spectacle of a judge who is indecisive, particularly on matters which are mostly routine and which should be disposed of almost instinctively as intellectual reflexes”.

To Shientang, a judge should avoid two extremes: One, a mind untroubled by any great legal learning or a judge who believes that if he deliberates he is lost; and a mind tortured by the anxiety of making decisions or paralysed by extreme intellectual scrupulosity, tormented by doubt and painful indecision. Even those judges who adopt the middle course approach risk sinking into “a bog of indecision”.

The CJ’s remarks on judges is a com- prehension by him, like many concerned with efficient administration of justice, that aptitude is a judicial virtue that must never sag by a thread.

Aptitude predictably gives altitude to any individual judge.

The CJ’s open reprimand on a judge who is not living up to the expectation of a judge is an indirect way of shining institutional light on the virtues of those judges who are highly regarded by the judiciary itself, the legal fraternity and the public at large.

Both the CJ’s open reprimand and the indirect commendation of efficient judges ultimately set benchmarks for all judges, notwithstanding their level or locale.

Interestingly, the CJ made us to understand that the Judicial Service Commission ( JSC) is now into the production of law reports. As such, the CJ indicated that judges, whose judgments cannot make the grade into these reports, have no posterity.

It is only their relatives who would know that they were once judges. Put differently, virtuous judges will always be in our law reports. Axiomatically, “well-reasoned judgments usually find their way into the law reports”.

Thorough and decisive judges would inevitably make the grade.

The sword of justice will maintain its sheath if our Justices deliver their judgments in time.

Reserved judgments should not be reserved ad infinitum. Simple cases have to be expedited. Complex cases have to be simplified by our judges.

Undeniably, judges sit on “borrowed” chairs. Firstly, judicial authority is derived from the people and is vested in the courts. The judge is loosely the court. He or she is also frequently identified as the court or case manager.

The embodiment of a virtuous judge includes thoroughness and decisiveness. This virtue is linked to the description of a judge as a “fit and proper person”.

Other virtues are independence, courtesy and patience, dignity (including sense of humour), open-mindedness, impartiality, understanding hearty and social consciousness to employ the language Shientang alluded to above.

Secondly, the judiciary is believed to be the weakest political arm under the separation of powers doctrine.

This is notwithstanding the fact that the three arms (Executive, Judiciary and Legislature) of Government maintain checks and balances on each other.

Unique jurisdictions such as the United Kingdom have a strong judiciary described as “fearlessly independent”.

A common aspect in many jurisdictions is that political arms have functionaries who receive their mandates in three ways: election, appointment and succession.

Judges are not elected and cannot be beneficiaries of succession in Government. Appointment gives them a borrowed chair.

If only in terms of sheer span of constitutional attention, Section 180 of the Constitution of Zimbabwe, 2013 appears to explain why a judge has to have the virtue of thoroughness and decisiveness.

The prospective judge has to respond to an advertisement of a vacancy.

Conversely, his or her counterparts in Government — the President, the Senator and Member of Parliament — know that they can always receive their political mandates after the completion of an election cycle: Five years in the Zimbabwean context.

Responding to the advert and either being nominated by the President or the public is no guarantee that he or she would be appointed. Section 180 (2) (c) appositely compels the Judicial Service Commission ( JSC), to “conduct public interviews of prospective candidates”.

In terms of Section 180 (2) (d), three qualified persons form part of the list for the vacant office of a judge. The list is forwarded to the President. The one qualified can only be successfully appointed if the President is first satisfied with the list so forwarded by the JSC.

If not, hope of appointment continues because the President is compelled to get a second list from the JSC.

He is not debarred from nominating candidates to appear on that list.

After appointment, a judge can be removed from his or her office in terms of Section 187 of the Constitution.

One of the reasons linked to the CJ’s remarks is underscored in Section 197 (1) (c) as gross incompetence. Added to this are modes of judicial activity like being “apolitical”, a case and court manager and so on.

The virtue of thoroughness and decisiveness ensures that court matters are efficiently brought to finality.

This is frequently described as efficient administration of justice.

It culminates in access to justice by all. Justice will not only be done, but will be seen to be done. Such a virtuous judge knows that justice is blind, but has sophisticated listening devices.

He or she would ensure that members of the public, litigants and officers of the court treat themselves with decorously without interrupting court proceedings. In our adversarial legal system, such a judge controls the latitude of litigants to register their displeasure with judges through application for recusal of the judge.

He can also explain why he “descends into the arena” ; a loose way of describing situations where judges prolong their active involvement in a case.

The CJ’s remarks augur well with developments in other jurisdictions in terms of evaluating the unelected judges. The Chicago Council of lawyers carried a survey where judges such as Marvin Aspen, Susanne Conlon, William Hart, Harry Leinenweber, George Lindberg and others were evaluated.

Some were found to be held in high and others in low regard by lawyers who appear before them.

The reasons for the findings ranged from bias, hints of dishonesty, corruption, impropriety or blanket disregard of the law by any judge

In Hong Kong, the Chief Justice in a ceremonial opening emphasised the importance to judges of making decisions according to the law. He indicated that Hong Kong Judges were progressively making decisions on inunctions “according to the law and this was plain to see in the detailed, reasoned judgments that were given”.

Even when the Court of Appeal rejected applications for leave to appeal from the Court of First Instance, the court again did so explaining in detail the legal reasons of its conclusions.

To CJ, this is the rule of law and the administration of justice operating in practice and this is precisely how the Hong Kong Judiciary operates on a daily basis. A judge who is decisive oils the justice system because his judgements and orders would be respected and usually complied with. He would have given all the parties, including the unsuccessful parties, ample time to make their submissions to the court.

The open remand should not be taken as simple institutional talk by the JSC. Judges are constitutionally mandated to be competent.