Thursday, December 5, 2019

Should judges determine their own impartiality?

For justice to be served cases are expected to be evaluated on their merits, without prejudice or preconception. Ideally, judges should recuse themselves of their own volition or in response to a motion by a party in cases involving conflict of interest.

But in a system where the option for recusal remains the prerogative of the Judge, what other options are available to litigants should the Judges refuse to recuse themselves? It has proved difficult, on certain instances, for Judges to reasonably assess their own impartiality.

In June 2009, the U.S. Supreme Court decided Caperton v. A.T. Massey Coal Co. Inc. addressing the issue of whether a Judge must recuse themselves from a case when one party has donated a significant sum in support of that Judge’s election. A West Virginia trial court found that the A.T. Massey Coal Co. was liable for $50 million in damages arising out of a business dispute. After the verdict but before the case was appealed, West Virginia held its judicial elections. Massey’s Chairman expended $3 million to support Judge Brent Benjamin’s candidacy for a judicial seat on the West Virginia Court of Appeals — the court that would hear the appeal in Massey’s case. Benjamin was elected.

The plaintiffs in the case moved three times to disqualify Benjamin from hearing the case. Benjamin denied each motion, reasoning that he was not biased. With Benjamin casting the deciding vote, the court reversed the $50 million judgment against Massey.

On appeal, the U.S. Supreme Court considered whether Benjamin’s failure to recuse himself violated the due process Clause of the U.S. Constitution and found that due process required that he be recused. Considering “a realistic appraisal of psychological tendencies and human weakness,” the court found that the circumstances of the case presented a risk of bias sufficient to interfere with due process.

Back home, similar cases relating to conflict of interest by Judges have also been raised. In one of the most recent cases, litigants raised doubts about a presiding Judge’s impartiality over his connections to a local law firm representing other litigants in the same matter. The litigants, who have lost the case, made reference to the Judge’s past and “present” connections with the law firm.

“He used to be a Senior Partner at the law firm and his wife currently works for them,” they say, adding “He has retained the law firm as his Attorneys.” In addition, according to one of the aggrieved litigants, during the period leading up-to the court case the Judge in question instructed the same law firm to act for him in the execution of legal documents required for his (Judge) proposed sale of a residential property in Gaborone.

The litigant had expressed an interest to purchase the property. He submitted an offer for the property which was, however, never executed because he (the litigant) was “not allowed” to select his own attorneys to handle the transaction and felt it was unfair given he already had a pending court case involving the Judge’s own preferred law firm. The same law firm that also happened to be representing the other parties in the court case, under the same Judge.

The litigant consequently elected not to purchase the property. The litigants expected the Judge to recuse himself due to reasons stated above. He did not. They lost the court case under the same Judge.

But should Judges make a determination on their ability to remain impartial? “Generally a decision maker must not be a judge in his own cause, in matters in which he has interest and there is likelihood of bias or a reasonable perception that he will be biased,” says attorney Gosego Lekgowe.

“The rule exists so those who are affected by the decision do not walk away saying ‘we knew it, he couldn’t have come to a different decision, he has interest in the case’.”

Lekgowe says litigants are entitled to have their disputes determined by independent and impartial court under the Constitution. He says this principle is reinforced by the Judicial Code of Ethics. It is a trite and universal rule, he says, adding it is fundamental that justice not only be done, but it must also be seen to have been done.

“In my view, a judge must not decide a case in which he has a conflict of interest. He must recuse himself even before he is asked to do so. For me, I don’t even care that he thinks he will be objective. It matters to litigants that Justice be seen to have been done. It worries us sick when a judge refuses to recuse himself where the interest is clear.”

The office of the Registrar and Master of The High Court has confirmed the Judges’ discretion in relation to matters of conflict of interest.

According to the Registrar Michael Motlhabi the Judge may at their “own instance” recuse themselves taking into consideration circumstances which create a reasonable apprehension of bias on their part.

“Ordinarily, an application is placed before the Judge for his recusal, and if it has substance, he would recuse himself,” Motlhabi says. The Registrar says there is a code of conduct for the judges based on the Bangalore Principles of Judicial Conduct 2002. “It cuts across the conduct of Judges generally, and its aim is inter alia ‘to establish standards for ethical conduct of Judges’.”

Caperton v. A.T. Massey Coal Co. Inc(source-American Psychology Association)

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