Maren de Klerk
ETHICAL PRINCIPLES FOR JUDGES – CAPITA SELECTA
A Judge must be and be seen to be free to decide honestly and partiality on the basis of the law and the evidence, without external pressure or media influence and without fear of interference from any Party.
Every citizen has a constitutional guaranteed right to have their disputes heard and decided by impartial Judges.
The first qualification of a Judge is the ability to make independent and impartial decisions which is a matter of independent and impartial decision making by each and every Judge. The Judge’s duty is to apply the law as he or she understands it without fear or favour and without regard to whether the decision is popular or not.
Judges must of course also avoid any improper attempts by litigants, politicians, officials or other Parties to influence their decisions. In this regard they must take specific care that communications with such persons that Judges may initiate, could not raise reasonable concern about the Judge’s independence.
It has been stated that judicial independence and judicial ethics have a symbiotic relationship because public acceptance of and support for Court decisions depends upon public confidence in the integrity and independence of the Bench. This in turn, depends on the judiciary upholding high standards of conduct, so as to ensure the independence of the judiciary.
Public confidence in the judiciary is essential to an effective judicial system and ultimately to democracy founded on the Rule of Law. An important factor which is capable of undermining public respect and confidence is any conduct of Judges in and out of Court demonstrating a lack of integrity. Therefore Judges should strive to conduct themselves in a way that will sustain and contribute to public respect, integrity, impartiality, and good judgement.
Judge’s conduct both in and out of Court is no doubt bound to be the subject of public scrutiny and comment, and as such must therefore accept some restrictions on their activities, even activities that would not elicit adverse notice if carried out by normal members of the Community.
This is particularly important as the questionable conduct of one Judge reflects on the judiciary of the Country as a whole.
Judges should be diligent in the performance of their judicial duties.
Specifically Judges should not engage in conduct incompatible with the diligent discharge of judicial duties or condone such conduct in colleagues.
Judges should conduct themselves in proceedings before them so as to ensure equality according to Law.
In particular Judges should not be influenced by attitudes based on stereotype, myth, or prejudice and they should therefore make every effort to recognise demonstrate sensitivity to and correct such attitudes.
In this regard Judges should strive to ensure that their conduct is such that any reasonable, fair minded and informed member of the public will justifiably have confidence in the impartiality of the Judge and accordingly they should avoid comments, expressions, gestures or behaviour which reasonably may be interpreted as showing insensitivity or disrespect to anyone.
Judges must be and should appear to be impartial with respect to their decision and decision making.
Judges should as much as reasonably possible conduct their personal and business affairs so as to minimise the occasions on which it will be necessary to be disqualified from hearing cases and the appearance of such impartiality is to be assessed from the perspective of a reasonably fair minded and informed person.
Although Judges are free to participate in civic charitable activities it is subject to inter alia that they should:-
avoid any activity or association that could reflect adversely on their impartiality;
should avoid involvement in causes or organisations that are likely to be engaged in litigation;
should not give legal advice or investment advice.
Although members of a Judge’s family have every right to be politically active, Judges should recognise that such activities of close family members may, even if erroneously, adversely affect the public perception of a Judge’s impartiality.
Judges should similarly disqualify themselves in any case in which they believe that a reasonably, fair minded informed person would have a reason suspicion of conflict between a Judge’s personal interest or that of a Judge’s immediate family or close friends and the Judge’s duty.
In a Canadian case of R versus Lippé the following was stated by LAMER C.J.C. “the overall objective of guaranteeing additional independence is to ensure a reasonable perception of impartiality; the additional independence is but a “means” to this “end.” If Judges could be perceived as “impartial” without judicial independence, requirement of independence would be unnecessary. However, judicial independence is critical to the public’s perception of impartiality. Independence is the corner stone, a necessary prerequisite for judicial impartiality.”
Therefore, a reasonable perception that a Judge lacks impartiality is damaging to the Judge, the judiciary as a whole and the good administration of Justice.
Everything from his or her association of business interests to remarks which a Judge may consider to be harmless banter, may demise the Judge’s perceived impartiality.
Where conflicts of interest is concerned, the Honourable Wilson in “A Book for Judges” says that a Judge’s qualification would be justified by a pecuniary interest in the outcome; a close family; personal or professional relationship with the litigant, council, witness or accused; or the Judge having expressed views evidencing bias regarding a litigant.
In addition and according to the Bangalore principles and the commentary on the Bangalore principles it has been stated inter alia that the Judge must avoid all activity that suggest that his or her decision may be influenced by external factors such as a personal relationship with a party or an interest in the outcome of a case.
Depending on the circumstances a reasonable apprehension of bias might be thought to arise if there is a personal friendship or animosity between the Judge and any member of the public involved in the case.
If a Judge does not act within some of the guidelines as expressed above, it is inevitable that public confidence in the judiciary is eroded by irresponsible and improper conduct by Judges. A Judge must therefore avoid all impropriety and appearance and appearance of impropriety.
In addition a Judge should avoid participating in or being associated with discussions about matters falling within his jurisdiction of his or her Court. This extends to comments by other regarding high profile cases or legal issues that could come before the Court, because such communications could give the impression that other people or organisations are in a position to influence the Judge and it could also raise valid concerns about the Judge’s impartiality.