Sunday, October 17, 2021

Letter from the editor: Even judges have feet of clay

Say “judge” and a lot of complimentary attributes come to mind: integrity, fair, just honest and level headed. That is why most of us have no qualms standing up in court when a judge enters the room. Judges never have to earn their respect. Just having the title Justice before their name earns them special respect by default. We place them on a pedestal and credit them with judiciousness without questioning whether they deserve the veneration. This relationship is only sustainable because we live it in our heads and not in the real world. It is all an illusion.

But once in a while, reality gets in the way and jolts us out of our reverie.

The recent Court of Appeal Judgment in my sedition case provided such a wakeup call. I had the most disturbing epiphany.

When judges venture beyond tested evidence and still cling to their venerated authourity they not only run the risk of undermining the law. An advantage the media does not enjoy.

It becomes even worse when it seems the reasoning behind their judgment is less about figuring out what is true, and more about reinforcing a preconceived notion and upholding the status quo of the political elite, simply by virtue of them being the political elite.

It is a sad day for justice when the reasoning of our bench comes across as injudicious. When their judgments seem shaped by loyalties and not the facts before them. When they have to reach beyond the facts at their disposal. When they see only what they want to see and lower judicial standards of evidence to sustain an apparent preconceived position. But then, reasoning was designed by evolution to help us win arguments and support our positions and not, to establish the truth.

When judges base their conclusions on information they picked outside court, it is not farfetched to conclude that they engaged in motivational reasoning and the untested evidence provided the much needed grist to the motivational reasoning mill. The whole judgment reeks of confirmation bias. This is the tendency to search for, interpret, favor, and recall information in a way that confirms one’s preexisting beliefs. This phenomenon, “is a type of cognitive bias and a systematic error of inductive reasoning. People display this bias when they gather or remember information selectively, or when they interpret it in a biased way. The effect is stronger for emotionally charged issues and for deeply entrenched beliefs.”

The Media Institute of Southern Africa (MISA) of Friday issued a statement condemning the panel of judges for overeaching itself by finding on evidence that was not before them. To be very generous to the panel of judges, the MISA statement does not necessarily mean the judges are wrong and MISA is right.

The attitude polarization (when a disagreement becomes more extreme even though the different parties are exposed to the same evidence) is disturbing. The attitude polarization suggests that biased search, interpretation and memory by both MISA and the panel of judges. And that is being generous to the panel of judges. The truth of the matter is that the panel of judges is guilty of the irrational primacy effect (a greater reliance on information encountered earlier outside court). They focused on one side of the untested evidence, one possibility and ignored possible alternatives and this has biased their conclusions.

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