Regarding the behaviour and conduct of judges, especially in relation to social media, the Judicial Conduct Guidelines of the United Kingdom state that all judges should be aware that, by long standing convention, they are not to comment publicly on the merits, meaning, or likely effect of government policy or proposals, including proposed legislation.
Judges are not supposed to comment on the merits of public appointments; or the merits of individual cases. The reasons for these conventions are to promote the dignity of the judicial office, the finality of judgments, and, crucially, the independence of the judiciary from the other branches of government.
To those that follow discussions on social media, it is easy to testify to the truth of these sentiments. The dignity of the judiciary in Malawi has certainly been subjected to a bit of ridicule lately.
A certain superior court judge decided this past week to voice his views regarding the landmark ruling of the Supreme Court of Appeal in the elections case.
For some inexplicable reason, the judge in question, himself a member of the Supreme Court of Appeal, decided to post on his Facebook wall an opinion that was essentially some kind of dissent to the effect that his fellow judges’ views and opinions in that elections case appeal were erroneous.
I do not know if Malawi has a judicial conduct guide, and a mechanism to discipline judges that go wayward in this manner, but there certainly is a serious issue here that requires redress.
Judges are expected to exercise their freedom to talk to the media or in the media with caution. Judges should refrain from answering public criticism of a judgment or decision, whether from the bench or otherwise. Judges should not air disagreements over judicial decisions in the press or on social media.
Many aspects of the administration of justice and the functioning of the courts are the subject of necessary and legitimate public consideration, and appropriate judicial contribution to this debate can be desirable. It may contribute to public understanding and to public confidence in the judiciary.
For instance, I do not believe that there can be any objection for judges to comment on matters that deal directly with the operation of the courts, the independence of the judiciary or aspects of the administration of justice.
However, as a matter of desirable practice, judges are encouraged to refrain from commenting on any issue when the judiciary intend to issue a formal, institutional comment, but have not yet done so.
Judges should be aware that participation in public debate on any topic may entail the risk of undermining public perception in the impartiality of the judiciary whether or not a judge’s comments would lead to recusal from a particular case. This risk arises in part because the judge will not have control over the terms of the debate or the interpretation given to his or her comments.
The risk of expressing views that will give rise to issues of bias or pre-judgment in future cases before the judge is a particular factor to be considered. This risk will seldom arise from what a judge has said in other cases, but will arise if a judge has taken part publicly in a political or controversial discussion.
For these reasons, judges must always be circumspect before accepting any invitation, or taking any step, to engage in public debate, especially on social media. Consultation with their relevant leadership judge before doing so is almost always desirable and of utmost importance.
Where a judge decides to participate in public debate, he or she should be careful to ensure that the occasion does not create a public perception of partiality towards a particular organisation (including any political party), group or cause or to a lack of even handedness.
Care should also be taken therefore, about the place at which and the occasion on which a judge speaks. Participation in public protests and demonstrations may well involve substantial risks of this kind and, further, be inconsistent with the dignity of judicial office.
The risk of different judges expressing conflicting views in debate must also be borne in mind: a public conflict between members of the judiciary, expressed out of court, will almost certainly bring the judiciary into disrepute and diminish the authority of the court.
There is, in principle, however, no objection to members of the judiciary speaking on legal matters, which are unlikely to be controversial, at lectures, conferences or seminars organised by professional bodies, or by academic or other similar non-profit making organisations.
Lectures and seminars which deal with matters of more general public interest may, however, raise wider issues of policy, sometimes not immediately apparent.
Depending on the circumstances, it may be inappropriate for a judicial office holder to deliver a public lecture or participate in a conference or seminar run by a political party or a commercial organisation.
If writing an article or making a post on social media, careful consideration should be given to whether it is appropriate to include reference to the writer’s judicial position. In addition, care should be taken not to comment on a particular case or judicial decision or upon a politically sensitive issue.
In these days when Malawi is going through political turmoil and unprecedented political upheavals, it is probably difficult for judges to recognise the impact that their behaviour and conduct can have in fanning the embers of disharmony, especially when they make comments that put the judiciary into disrepute.
Judges being human may get tempted to voice their views on political matters, or post on social media or some other media comments that can end up directing the political spotlight onto themselves. Such conduct by judges is unprofessional and unethical and should be avoided.
Judicial independence is a critical component of the concept of the rule of law, as we see it in Europe and more widely in Western democracies.
In our tradition, impartial adjudication by the judiciary requires the separation of powers. In our modern history the executive organs of the State have been subjected to the rule of law by, among others, an independent judiciary.
In view of its power over the judiciary, which it funds and whose judgments it enforces, the most obvious candidate against whom independence is asserted is the executive branch of government. But judges also need to act independently of parliamentarians, the media, pressure groups and powerful individuals or corporate organisations.
Judges take a judicial oath to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will”. To do right, that is to decide cases impartially and in accordance with the law, judges must be independent of all litigants and also of all who might directly or indirectly seek to influence the outcome of a legal action, including their fellow judges who are not sitting on the particular case.
Thus, it is important for judges to refrain from commenting on matters that are liable to cause or promote political turmoil in the manner that the judge spoken about above did.
Besides perhaps ensuring that there is a well-publicised conduct code for judges in the country, I call upon the Judiciary services commission to consider giving guidelines to judges as to what they can discuss on their social media forums, as well as discipline those judges that decide to roguishly go off that reservation.
If a Supreme Court judge, or any judge for that matter, wants to comment on political issues of the day, or to debate against a law professor on the merits of a Supreme Court judgement the panel of which he was not a member, let him do so in the privacy of his home or office, not on social media.