Threatening judges an assault on democracy

CRIMINAL trials and civil hearings in the courts before a judge or magistrate are in theory and usually in practice conducted in a calm and orderly manner, following rules and procedures that have been built up, sometimes over centuries, to find out what happened and who did what.

Rules of evidence, of what may be presented in a court and how this should be tested, handled and interpreted, have obtained largely universal agreement across cultures and legal systems as humans make one of their best attempts to bring order into a very often most disorderly world.

Mistakes, of course, are made, a judge or magistrate might misinterpret a law or procedural matter, evidence can be capable of several interpretations, and there are those who will fabricate evidence, or destroy evidence.

To a large extent the legal systems are self-correcting. In criminal matters there needs to be proof beyond reasonable doubt, so dubious evidence or ambiguous evidence tends to weaken a prosecution and often proves to kill the prosecution case. If there is doubt the prisoner goes free.

In civil matters, the standard is balance of probabilities, that is a decision must be reached in a civil dispute that makes one of the parties the winner, since if there is property, for example, in dispute it must belong to one of them. But again dubious evidence, ambiguous evidence will tend to weaken one of the cases, so generally in the end the court will reach a conclusion that is rational and fair.

Of course a different judge might come to a different conclusion, and there is always the possibility of a legal misunderstanding. This is why we have appeal processes. Two High Court judges hear appeals from a magistrate’s court and three Supreme Court judges hears appeals from the High Court.

If there is a matter that concerns constitutional rights and the like, then the seven judges of the Constitutional Court will make a decision that is a binding interpretation of the Constitution. The Constitutional Court has a second function, acting as an electoral court for Presidential elections, where it is more like a supercharged High Court, examining the evidence presented to see if there was some error in the electoral process that could nullify a Presidential poll.

Not all appeals are automatic, although there are some, which is why an aggrieved party needs leave to appeal, either from the lower court who while backing their own decision agrees another court could make a different decision, or from the higher court who agrees that there is sufficient doubt justifying a second look at the matter before an appeal bench.

It is this system, entrenched in our Constitution, that we all have to move through and follow, as Chief Justice Luke Malaba made clear when he opened the present legal year this week. And in the end we are obliged to accept the results, whether we like them or strongly dislike them. The courts are there to find the truth and apply the law, and do so independently, not act according to our likes or any pressure.

In most cases this is what happens, and most people accept the final result. A criminal might strongly dislike the sentence, and even feel that the court was not really sympathetic to the provocation or temptation they felt at the time, but does not feel they were picked on. In civil cases many might feel that the law is indeed “an ass”, but will accept that the court interpreted it correctly and gave a fair shake.

But there is a minority that tries to manipulate the system, and this worries the Chief Justice and should worry the rest of us as well.

First there are lawyers who dream up every possible delaying tactic, often to postpone what is an inevitable result, and then runs through the appeal process, again delaying at every stage. This is legal. It might be misusing the checks and balances fed into the system to protect the innocent and righteous, but we cannot really eliminate these measures without causing injustice to those who need them, rather than just use them. So courts and public just need to cope.

But some go further, a lot further, and we have judges intimidated, wild allegations made with zero evidence except that they ruled against a particular person, and similar criminal or unwarranted behaviour. The Chief Justice said seven sitting judges had come under these sort of attacks.

Of course there have been justified complaints, but these are made and handled differently. In the end there have even been tribunals set up to see if there are any grounds to remove a judge from office. But even here, there have only been a couple to look at a judge who might have behaved improperly, becoming personally involved in cases. Most have been for judges who simply were grossly inefficient and, what appears to be reluctantly in one case, a judge who seemingly suffered a severe illness but declined to seek medical attention that at worst would have led to a medical retirement with full-service pension.

What the Chief Justice was looking at was where lawyers sometimes joined in the attacks on a judge. While a lawyer must give their clients their full support there are rules. For example, a lawyer is not allowed to lie, and in criminal cases if a client tells a lawyer they committed the offence then the lawyer has to instruct them to plead guilty and then fight tooth and nail over the sentence. Lawyers are also obliged, once the appeal process is finalised, to accept that final result and persuade their client to do the same.

This is the sort of behaviour that Chief Justice Malaba found unacceptable. He did not mention the political attacks that sometimes arise, where politicians accuse the judges who ruled against them in electoral or similar matters of bias, but this is also a problem.

A lot of work was done in our new Constitution to make sure that electoral disputes were handled swiftly by trained judges, who we must remember stay in office until retirement age regardless of who voters choose or do not choose. There are simply no pressure points to get a judge to make a political decision.

The problem of the sore loser, in the ranks of clients and their lawyers and political supporters, is a human one. The judiciary has never complained about well-reasoned and sober criticism, and for that matter has never complained about some of the loser arguments in the media, seeing this as part of a democratic process.

But when this comment and criticism moves into the realms of threats, intimidation, and what amounts to gross manipulation of processes, then we have moved beyond democracy and free speech and are moving towards gangster and mob rule, both threats to democracy and to our freedoms.