Cape judge president has a duty to stay away while under cloud (cont.)
He then rejected a suggestion from the minister of justice that he remain on leave, reportedly "exercising his right to work". Some commentators thought — even if ruefully — that Hlophe had this right, some said he was bound by the special leave arrangement, while others maintained that, agreement or no, it was not for the minister to tell a judge what to do.
There should, however, be no confusion. It is perfectly clear that Hlophe has no right to return to work while the cloud remains over his head. Whether or not the minister has the legal power to compel him to do his duty is something altogether different. Duties are not duties only when they are legally enforceable; nor do they cease to be duties merely because they can be ignored with impunity. On the contrary, among honourable people many duties are acknowledged as binding obligations precisely because they are not legally enforceable. This is not lawyers’ talk but elementary decency applicable to all of us irrespective of our cultural or social differences.
IN THE case of a judge the position is even clearer. Hlophe is not a junior clerk in government service subject to the supervisory powers of ordinary employment. He is a judge of the High Court, an appointment which our constitution clearly regards as special. This gives us the assurance that our judges are men and women with the necessary personal and institutional independence to uphold our rights impartially and without fear, favour or prejudice. To this end the office to which judges are appointed is specially privileged. Unlike members of the national legislature or executive, judges are not answerable to the electorate and are not subject to periodic re-election. Unlike members of the public service, judges are not subject to public service regulations, performance criteria or office hours. They do not rise through the ranks, are not subject to supervision or discipline at the hands of a superior, cannot be dismissed for incompetence or insubordination, a! nd their salaries, allowances and benefits cannot be reduced. Nobody, not a judge president, not the chief justice, not the minister or even the president can tell judges when and how to do their jobs; and if judges fail to do their work diligently — or even competently — they cannot be fired (except in very special circumstances).
But these very important privileges are not personal privileges. They are privileges that attach to the office so as to protect judicial independence, and they go hand in hand with heavy obligations. What gives the office its special character is not that there are no obligations but that the obligations of judicial office cannot be enforced from outside. We rely for their enforcement on the integrity and self-discipline of the judge.
ACCEPTING appointment as a judge creates a special kind of compact with society. While we entrust our judges with great freedom in the performance of their functions, they in return accept the onerous duty at all times to be worthy of such trust. Judicial ethics is therefore not about the enforcement of obligations but about integrity, restraint and the protection of the moral authority of the judiciary. It is about trust.
As the Judicial Code of Conduct makes plain, the supremacy of the constitution and the rule of law are foundational to our democracy. Judicial independence is, in turn, foundational to the rule of law. It is the cornerstone of judicial impartiality and integrity, which are the ultimate safeguards of the rights and freedoms promised to each of us by the constitution. This independence is not a private right or a benefit for judges as individuals. Therefore a judge who invokes judicial independence in support of conduct unbecoming judicial office doubly damages the moral authority of the judiciary.
There are indeed many obligations that attach to judicial office. They do not need to be spelt out in a contract of employment because every judge knows — or ought to know — what they are and when in doubt can consult the code or a colleague for guidance. In principle a judge should always, not only in the discharge of official duties, act honourably and in a manner befitting judicial office. Nothing a judge does or does not do, on or off the bench, should bring the judiciary into disrepute. In the result many things that ordinary citizens are entitled to do are not permissible for a judge. A judge should never be seen in a casino or a seedy club. A judge may not have a drink too many in a public place. Judges never become involved in politics. They avoid public altercations and litigation. They never comment publicly on court cases. Indeed, they should avoid the limelight at all times. Judicial independence is not licence. It has its own special ! framework of dos and don’ts by which judges are ethically bound. At the core of all these obligations is the obligation to preserve the integrity of the judiciary.
HLOPHE has been accused of attempting to subvert the course of justice. The charge has not been made by a disgruntled litigant. It has been made by the country’s most senior judges. At this stage it is irrelevant whether the accusation is correct. Assume that the judges may be mistaken, that they may have misinterpreted events or were given incorrect information. Unless and until the Judicial Service Commission has made a finding in that regard, however, we do not know whether or not Hlophe has committed this extremely serious crime. There can be no doubt that if indeed he has done so, he is wholly unfitted for judicial office. Seeking to influence the outcome of a case by lobbying the presiding judge or judges strikes at the very heart of the judicial process. For a judge to behave in this fashion would be monstrous.
There can be no question that until the truth or otherwise of the accusation is established, the public cannot be expected to have their disputes adjudicated by this judge. Although judges are fallible human beings and may therefore make mistakes, it is fundamental to the rule of law that the public has complete trust in the integrity of their judges. Civil litigants and, all the more, accused persons should have confidence in the integrity of those who decide their fate.
FOR the present the public clearly cannot be expected to accept that Hlophe hears their cases or heads the administration of justice in the Cape High Court. While he stands accused by his peers of seeking to subvert the course of justice, he simply does not enjoy the requisite trust in his integrity. We are not concerned here with the presumption of innocence. The issue is public confidence in the administration of justice.
THERE is no alternative but that the judge must honour the leave arrangement he made last year. He cannot sit in judgment on others while he himself is under suspicion. Indeed, if Hlophe were to exercise judicial functions while such a dark cloud hangs over his head, he would taint the administration of justice with that same suspicion. A judge president, besides actually hearing cases in court, exercises numerous discretionary powers affecting the interests of the public, the legal profession and the judiciary. The impropriety of the judge president’s insistence on occupying the office while accused of such a serious charge is all the greater. The suspicion alone disqualifies him.
The judge president has no more right to continue in judicial office than a suspected paedophile has to continue running a nursery school. Surely it would seriously undermine public confidence in the law enforcement system if a police station commissioner on bail for corruption were to remain at his desk pending his trial? And surely the need for public confidence is all the greater where we are dealing with the head of the judiciary in Western Cape?
HLOPHE is under a duty to remain in professional “quarantine” so as to avoid the appearance of impropriety, which his exercising judicial functions would inevitably arouse. It makes no earthly difference whether he is bound by the special leave arrangement or whether he is indeed guilty of the charge levelled against him. If his own conscience does not persuade him to stay away from his office, the Judicial Service Commission should be urgently convened to consider a recommendation to the president under section 177(3) of the constitution that he be suspended from office pending the determination of the charge against him. (And incidentally, if as reported Hlophe is embarrassed to receive his salary while not performing his judicial functions, surely the remedy lies in his own hands?)
# Judge Kriegler chairs Freedom Under Law, a not-for-profit company incorporated in SA and Switzerland.