Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
20 August 2008

John Hlophe, judicial ethics and judicial independence

Gilbert Marcus, lawyer for the Constitutional Court in its case against Judge President John Hlophe, argued today in the High Court in Johannesburg that even on his own version of events, the actions of Judge President John Hlophe amounted to gross misconduct on his part. According to the Mail & Guardian:

Marcus said that Hlophe, in his papers before the court, gave details of the conversations he had with the two judges in an attempt to defend himself against the charges that he tried to influence their decisions in the Zuma case.

Marcus quoted Hlophe as saying to the judges, “I felt strongly about privilege and fair rights” and “the Zuma matter had to be correctly decided on”. Marcus said these statements — made by Hlophe’s own admission — already amounted to misconduct. “That, with respect, amounts to gross misconduct,” Marcus told the court. “On his own version, that is what occurred.”

Some would argue that this is the typical blustering of a lawyer trying to put the best spin on events. Surely Hlophe – and his lawyers – will not be stupid enough to admit to gross misconduct in his own papers? Regular readers of this Blog would not be surprised that I would not agree with this view. But regular readers might be surprised to read that I found support for Marcus’s argument (and implicitly my own view) in a report issued in July by the International Bar Association about the safeguarding of judicial independence in South Africa.

I was startled to read the following very clear statement on page 20 of this report:

Judicial independence is commonly described as being comprised of two components – the individual independence of judges and the institutional independence of the courts. Individual independence refers to the requirement that judges decide cases independently and impartially ‘on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason’. This independence not only refers to external influence but also to influence from other judges themselves. Institutional independence is the independence of the judicial branch itself from the other branches of government, which enables it to carry out its role safeguarding judicial process and protecting the individual independence of judges.

Arguments put forward by some of the Judge President’s supporters that it was perfectly normal for a judge of a lower court to discuss a pending case with judges of a higher court and to try and convince them to rule in that case in a particular manner on one or more of the legal issues. This is after all what the Judge President himself had admitted to in his papers. The International Bar Association clearly disagrees and says this would threaten the independence of the judiciary.

No wonder I argued a few weeks back that the Judge President’s legal team was not up to the task. As Marcus pointed out today, it seems likely that they allowed him basically to admit that he is guilty of misconduct. Not very wise on their part.  What were they thinking?

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