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
11 January 2009

Judicial transformation and Justice Cameron

Last year Supreme Court of Appeal judge Carol Lewis created a storm when she seemed to suggest that racial transformation of the bench had led to a lowering of the quality of judgments issued by High Court judges. It was therefore interesting to see that newly appointed Constitutional Court Justice Edwin Cameron made similar remarks in an interview in today’s Sunday Times:

“Judges, black and white, are troubled by some of the judgments we’ve seen coming from the high courts,” he says carefully, mindful of the fire storm his colleague, Judge Carole Lewis, triggered recently.

She criticised the quality of judges, suggesting that the problem arose when political connections and race took precedence over merit in appointments to the bench. Does Cameron agree?

“Let me phrase this carefully,” he says, sounding like he’d much rather be playing beach ball with the children whose shrieks of joy are loudly audible in the background. “I think that she rightly signalled a widely held concern.

“Being a judge is a tough job technically, a tough job emotionally, a tough job intellectually, and we need tough men and women who can do it.”

Why aren’t they being appointed?

“It’s the tension between racial and gender transformation and technical ability.”

Has transformation been pushed too quickly?

Long pause. “I’ve got to give you an answer with integrity that doesn’t dance between the egg shells …

“I think the goals aren’t incompatible,” he says after another pause. “But I think more attention has to be paid to the tough technical and personal capabilities required of a judge.”

After 1994, racial transformation was “an imperative. If the bench had remained overwhelmingly white after 1994 we would have had a political problem. Now we’ve got a technical output problem.”

Yet I suspect these comments will illicit far less unhappiness because Cameron makes clear that he thinks transformation and technical expertise on the bench are not incompatible. Unlike Lewis, whose remarks could have been interpreted as racist because it suggested that black lawyers were inherently incapable of mastering the kind of technical legal issues required to be a good judge, Cameron shows he is acutely aware of the racial politics in our country and signals this clearly in the interview.

Maybe demonstrates the difference between a garden variety white liberal on the one hand, and someone like Cameron on the other, who has done work for the National Union of Mine Workers and has a keen understanding of the racial injustices in our country.

Perhaps this kind of sensitivity is also strenghtened if one is an outsider – gay and HIV positive? It will be interesting indeed to see how Cameron deals with the difficult gender issues that the Court might be faced with: a clash between gender equality and polygamy, say! I suspect on these social justice issues Cameron will be closer to Sachs, O’Reagan and Mokgoro, than to Ncgobo and Skweyia – despite being quite a traditional black letter lawyer.

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