Judges’ moral authority matters

‘How far can one go in criticising a judge? Our law, while saying that ‘justice is not a cloistered virtue’ and that ‘it is right and proper that [judges] should be publicly accountable’, does place limits on the criticism of judicial officers and the administration of justice for which they are responsible.”

This is an introduction by former Constitutional Court Judge Johann Kriegler in the case brought by Department of Correctional Services spokesperson Russell Mamabolo against a Pretoria High Court judge, who had convicted Mamabolo of contempt of court because the correctional services spokesperson had publicly criticised the judge concerning a matter he had ruled on.

The long and short of that judgement was that judicial officers were not beyond fair criticism, and that they held moral authority in the exercising of powers vested in them.

It is within this context that this column will focus on Cape High Court Judge Siraj Desai, who was arrested on allegations of raping a fellow delegate to the World Social Forum held in Mumbai, India.

It is difficult being a judge at the best of times. Of course there is the satisfaction of reaching the pinnacle of a legal career.

But judges are having to defend themselves against politicians who thought they were overpaid and underworked. In truth, their earning power was severly limited when they opted out of private practice and now have to spend their spare time reading volumes of court papers and writing judgements because of a dearth in research assistance.

Where accused people are of different colours, judges know that their rulings, however correct in law, would be looked at through racially tinted glasses. Thankfully, many soldier on. But back to Judge Desai.

Popular opinion is that his career is ruined regardless of the outcome of the Mumbai court findings.

This is because Judge Desai is likely to be perceived as having committed the offence known in legal circles as “scandalising the court”.

Judges, unlike some cricketers, boxers, actors or even journalists, carry with them a moral authority that is as essential to their jobs as their knowledge of the law.

Whereas practising lawyers ought to be “fit and proper” persons to carry out their duties, for judges the bar is much higher. Their conduct should be beyond reproach.

Professionals from other fields have pleaded mutual consent when caught with their pants down — and got away with it. Judges, like holy men and women, will rightfully have their indiscretion magnified many times over, simply because of who they are. And so it should be.

However, much as one may like or respect judges for their knowledge of the law, it is imperative that they can come face to face with the scum of the Earth and tell them off without anyone wanting to say “look who’s talking”.

Judge Desai will have his day in court, albeit on the wrong side of the bench. But it is in the court of public opinion where the gavel has already fallen. The merits of the criminal trial regardless, in the back of the public’s mind the picture of the married judge kissing and holding someone else’s wife will be hard to shake off. His having to have a semen-filled condom taken for tests will be hard to swallow.

Judge Desai simply cannot win. He is a judge and, somehow, is expected to be more virtuous than the proverbial man in the street.

Judge Kriegler continued in the Mamabolo case: “Under the doctrine of separation of powers it [the judiciary] stands on an equal footing with the executive and the legislative pillars of state; but in terms of political, financial or military power it cannot hope to compete. It is in these terms by far the weakest of the three pillars, yet its manifest independence and authority are essential.

Having no constituency, no purse and no sword, the judiciary must rely on moral authority. Without such authority it cannot perform its vital function as the interpreter of the Constitution, the arbiter in disputes between organs of state and, ultimately, as the watchdog over the Constitution and its Bill of Rights — even against the state.”

This means that while it is not legally wrong, judges should not kiss other people’s spouses. They have to be morally upright. It is a fundamental of their trade.

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