JUNE 2016

    John Hatchard

This article addresses some of the key challenges that judges in small states face in seeking to maintain judicial independence and uphold judicial integrity. It explores their appropriate reaction to public criticism of judgments, including the extent to which judges themselves and/or members of their family should use the media to respond to such criticism. The article then considers the appropriate response of judges to media allegations of judicial corruption and impropriety and argues, in particular, against the retention of the criminal offence of scandalising the court. A highly publicised dispute between two senior judges in Lesotho then highlights the importance of judges respecting the Values of “Integrity” and “Propriety” set out in the Bangalore Principles of Judicial Conduct.

small states; judicial response to criticism; corruption allegations against judges by the media and the offence of scandalising the court; upholding judicial integrity
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In small states, members of the judiciary can face particularly difficult challenges in maintaining judicial independence and integrity.1 Close family connections, as well as educational, social and professional links can make judges, already few in number, particularly vulnerable to political and other pressures. Further, as Schofield points out: “Much of a judge’s official social life in a small jurisdiction requires interaction with officials who are potential or actual litigants ... [and] matters which are everyday occurrences in a larger jurisdiction are sensational news in a smaller jurisdiction.

It is against this background that this article examines four key issues which, whilst of general importance, are of special significance in small states:
(1) the appropriate response of the judiciary (and others) to public concern and criticism over decisions in high-profile cases or threats to judicial independence; (2) the constitutional limitations on legitimate criticism of a judge and judicial accountability;
(3) judicial corruption and the circumstances (if any) in which the criminal law may be invoked to punish those who publicly criticise judges; and (4) maintaining judicial integrity and independence in “conflict” situations between judges.In doing so, the article will review, in particular, recent cases from four small Commonwealth African states.

By way of introduction it is useful to set out briefly the key elements of judicial independence and integrity as they relate to the discussion. Judicial independence is enshrined in several international and regional human rights documents as well as in most national constitutions. It is one of the fundamental building blocks for good governance and as emphasised in the Commonwealth Principles on Promoting Good Governance and Combating Corruption (the Commonwealth Principles): “An independent and competent judiciary, which is impartial, efficient and reliable, is of paramount importance.

Thus, with such independence comes the duty on the part of all members of the judiciary to adhere to the highest standards of integrity, service and commitment. The most authoritative document setting out international judicial standards is the Bangalore Principles of Judicial Conduct (the Bangalore Principles) which was endorsed by the Member States of the UN Commission of Human Rights in 2003. As noted in the Preamble, the Principles are “intended to establish standards for ethical conduct of judges.... The Principles presuppose that judges are accountable for their conduct to appropriate institutions established to maintain judicial standards”.

The Principles comprise a series of “Values”, two of which emphasise what people can and must expect from their judges:
(1) Integrity: “Integrity is essential to the proper discharge of the judicial office.”
(2) Propriety: “Propriety, and the appearance of propriety, is essential to the performance of all the activities of a judge.”

These Values are often enshrined in a judicial code of conduct or ethics.

It follows that a failure to observe such Values is rightly viewed as a matter of public concern and debate for, as Stephens has observed, “What ultimately protects the independence of the judiciary is a community consensus that such independence is a quality worth protecting.”6 This is also emphasised in the Commonwealth Principles (Latimer House) on the Three Branches of Government (the Commonwealth Latimer House Principles): “The principles of judicial accountability and independence underpin public confidence in the judicial system and the importance of the judiciary as one of the three pillars upon which a responsible government relies.”

As the following discussion highlights, in small states upholding these Values and Principles presents special challenges.