Saturday, September 19, 2009

Judiciary




A few personal thoughts on the job of being a judge.  

By Don Mitchell CBE QC

Last night we said farewell to a friend and colleague who has been appointed to fill the post of Justice of the Eastern Caribbean Supreme Court and who will soon be leaving Anguilla to take up the appointment in another island. I said a few words at the party. They were my own sincere thoughts on the occasion. Let me hasten to admit that there was nothing original about any of them, nothing that every lawyer in the West Indies does not already know. There was certainly nothing that would have been new to the person I was addressing. However, I had been asked to say a few words of advice and farewell, so I did so. For those of us who are not lawyers, it might be worth sharing the notes I made for the speech.
What I said went something like this:

  1. When you accepted this job, you were not being honoured for any merit on your part. The truth is rather that, for your sins, you have been sentenced by the Chief Justice to a term of solitary confinement with hard labour. Any little innocent relief that the country you serve in may afford you is time off for good behaviour. Follow this rule, and you will not get any false expectations.


  1. At the annual Armistice Day parade, when you stand in line behind the Governor and the Prime Minister, in front of the Bishop and the Leader of the Opposition, it is important to suppress that feeling that one must be a very important person. It is not you. It is the job that put you there. And, it does not matter who is in front of you, or who is behind you. You have no say on the question. It is entirely in the control of the Protocol Department. Let them do their job and you concentrate on doing yours.


  1. When you go to the beach on Sunday morning to have a swim, do not be surprised at the number of towels that get spread out around your position. People will be very polite, and excessively friendly. Expect to see every one of them in the court before you on the Monday morning. You may not have any idea who they are, but from the time you hit the beach, every litigant for miles around will realise this is their chance to ingratiate themselves with you, and will make a bee line to your spot of beach. By all means be polite to citizens, but avoid friendliness and the development of social relationships. You have not accepted this job to make friends, but to deliver blind and impartial justice to all who come before you, whether they swim or not.


  1. When you are working at the case load be grateful that you are expected to be flawless and perfect. Have no concern about making mistakes. That is why there is the Court of Appeal. The Court of Appeal makes mistakes too. That is why there is the Privy Council. What you are expected to do is to hear both parties to every case, and to deliver your decision one way or the other within a reasonable time, certainly not more than three months after the end of the case. Lawyers and clients will appreciate prompt decision-making much more than they will appreciate your lengthy and laboured effort to produce perfect justice.


  1. When your orderly drives you in to work in the morning, it is not to make you feel important. It is not for you to show off. It is a simple device for ensuring that the judicial office is not brought into disrepute. How can the citizen feel comfortable about you trying careless driving cases, when you are driving yourself and crashing into people and cars all over the country? When he takes you effortlessly through security and immigration, it is not to emphasise your importance. It is only that the powers that be consider that your judgments may be undermined in the eyes of the public if you are seen walking across the departure lounge in your socks, and buckling back up your trouser suit in public like everyone else. It is just one of the aspects of the job.


  1. On the point of the police, remember that your orderly is not given the job for his good manners and polite behaviour. In some of our islands his principal responsibility is to fill out a report at the end of each day on anything useful that he may have overheard or noticed while driving you. His promotion chances may depend on his providing titbits that his superiors may be able to use one day against you, if it ever becomes necessary. Some police chiefs keep highly confidential files on judges, just as they do on politicians, merchants, and lawyers. These Commissioner and their Superintendents never know when they might need the leverage.


  1. When you enter the court room, and the lawyers bow down, with their foreheads nearly touching the polished bar table, keep in mind that it is not to you personally that they are bowing. It is to the representation of the great seal of the State that hangs behind you on the wall of the court room that they are showing respect to. You are no more than the trigger to set off a demonstration of loyalty to the high ideals of justice which your office will represent.


  1. When your orderly carries your bag out to the aeroplane and ushers you onto it before any of the other passengers are allowed to board, while he ensures that he safely stores your bag, it is necessary to remind yourself that he is not pampering you. What he is doing is to help you to carry work home. The reason why the bag is so heavy is that it is a lot of work you are supposed to be carrying home each and every evening.


  1. While on the topic of aeroplanes, I hope I never hear that you have been demanding that you receive ‘your’ favourite seat. As a judge, you have no right to any particular seat other than that awarded to you by the airline. If you have no seat allocation, you board like everyone else and gratefully accept any seat that is available. Just hope the ‘plane takes off on time, and be thankful if your bag is on the same flight.


  1. The VIP lounge at the airport is not some place of privilege to which you are entitled access. In my experience, the VIP lounge is used by your Orderly to keep you safely confined until he can dispatch you out of his hands and onto the aeroplane. If you go to an airport free of the custody of your Orderly, use the departure lounge like everybody else, don’t demand access to the lounge like some Eastern despot.


  1. One important matter is the independence of the judiciary. It really is quite remarkable that no Chief Justice, no Justice of Appeal, no judicial colleague will question you about your job, except on an appeal. No one is looking over your shoulder, checking on what you are doing. Always remember that this is not a privilege special to the judge. It is not something you have earned, or have any right to. As Chief Justice Sir Dennis Byron liked to remind his judges from time to time, it is a privilege that belongs to the citizen alone, certainly not to the judge. It is fundamental to our system of justice that the citizen is entitled to be confident that his or her judge is delivering judgment without fear or favour, with prejudice to none. The judge’s independence is his right and entitlement, not yours.


  1. Finally, each of our islands has its charms, and its challenges. Some are coral and others are volcanic. Some are mountainous and others are flat. The people are universally friendly and polite. Show courtesy and politeness back, and you will have no difficulty enjoying your period of service. And, when after a few years it is all done, we look forward to your returning to us and rejoining the community of friends and colleagues whom you are leaving behind.


  1. We bid you adieu and bonne chance.