by SAILESH MEHTA
“… I WILL do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will…” – this is the judicial oath taken by judges in England and Wales.
Similar oaths are taken by judges in many countries all over the world. It is a declaration of judicial independence and a promise to uphold the rule of law. The difficulty arises when the judge’s ruling clashes with the will of a politician, and such occurrences are becoming more frequent.
Last week, the supreme court of Sri Lanka reluctantly entered one of the country’s most controversial political storms. The president (Maithripala Sirisena) had sacked the elected prime minister (Ranil Wickremesinghe) and replaced him with a controversial former president (Mahinda Rajapaksa). When an attempt was made to allow parliament to vote on the matter, Sirisena dissolved parliament. In a ruling hailed as one of the most important in its history, the supreme court suspended that decision. It was aware of the constitutional and political importance of its verdict and yet made the correct judgment. This augers well for Sri Lanka’s democracy and its rule of law.
It is not unusual for judges to be called upon to solve political problems of the highest importance. Judges will say that they are simply interpreting the law, but their critics insist they are taking sides and thereby entering the political arena.
Chief justice David Maraga and three of his colleagues in the Kenyan supreme court ruled in September 2017 to annul an election whose winner (president Jomo Kenyatta) was the man who had appointed him. This was hailed as a courageous decision in a continent that has often dealt harshly with those that oppose entrenched power.
If there was any doubt that the appointment of judges is laden with political machinations, one only needs to look at the recent turmoil caused in the appointment of Brett Kavanagh to the US supreme court. The fact that the Republican party was willing to overlook significant personal flaws in the appointee shows how important politicians think it is to get “their man” into the post.
The state of the US supreme court is such that commentators can (with a high degree of accuracy) predict any decision, based on which judges are going to vote. Many of the decisions are said to be entirely along “party lines”. That is why the gun lobby and the anti-abortion lobby (as well as the “do not impeach” Donald Trump lobby) were so keen to get Kavanagh on the bench.
However, the problem for politicians is that once judges are appointed, they often demonstrate an unexpected level of independence. Note the annoyance at the Donald Trump-appointed judge who ruled that a CNN journalist must be given back the White House press pass that the president took away without good reason.
The supreme court in India came for criticism recently from the religious right wing. In a landmark ruling, it decriminalised gay relationships, and wiped away entrenched Colonial-era legislation. Equally controversial was the lifting of a ban on female worshipers at Sabarimala temple, one of Hinduism’s holiest sites.
Death threats against judges are not uncommon. In Pakistan, the supreme court recently overturned the conviction (and therefore the death sentence) of Asia Bibi, a mother of three who allegedly blasphemed during a squabble with other villagers. In an analysis of the shockingly weak evidence against her (including a “confession” obtained by a crowd that had beaten the defendant) the court clearly came to the right decision, but received the inevitable criticism from religious zealots.
Judges in Europe have also been under great pressure recently. When they ruled that the UK government would require the consent of parliament to give notice of Brexit, the Daily Mail labelled the judges “Enemies of the People”. In Poland, a purge of its supreme court judges has been injuncted by the European court. In Hungary, the far-right president has chipped away at judicial independence. Such is the concern that Brussels has made it a condition of the receipt of billions of euros in hand-outs that a recipient country demonstrates a commitment to an independent judiciary.
Since the appointment of the first judges, there have been winners and losers in their courts. The winners praise the wisdom and fairness of the learned judge in interpreting the law, while the losers complain about the bias and ignorance of the judge. It was ever thus. It just feels that in these times of extreme ideology and unlettered leaders, the inevitable complaint of the losing side has become shriller and more sinister.
Sailesh Mehta is a barrister specialising in human rights and criminal law.