“Under such circumstances, you cannot release that guy on bail,” says a senior judge. “Why not?” a junior judge honestly asks. “Didn’t you watch TV last night or read the newspapers today?” the senior judge responds, and the guy remains locked up in jail.
While there are abundant comparative works with regard to the various constitutional and legal mechanisms built to help increase the independence of the judiciary, judges in many parts of the developing world remain prone to many sources of irregularities.
The best known sources of such irregularities usually include interference and manipulation from the Executive, the rich and powerful and, in many cases, it is simply plain corruption.
Examples of such practice are frequently reported on in the media. But those are not the only irregularities that we need to tackle.
There exist other improper acts happening inside the judiciary itself, often going unnoticed, which actually are just as bad, if not worse.
Consider the brief conversation between the two judges mentioned above for a second. A less-experienced judge asked for a specific opinion from his senior peer then acted according to the suggestion.
In other professions, exchanges of opinions may and should be very much encouraged. But in the case of the judiciary, such correspondence, however well-meaning in essence it could be, is very problematic for at least four reasons.
First of all, it is simply unethical. A judge should never discuss or disclose details of a case to another judge who is not assigned to work on the case.
Such correspondence not only could lead to the leaking of confidential details of an ongoing investigation but could also lead the asking judge to prematurely form conclusions based not on his determination but on an outsider’s, jeopardising his role as the adjudicator of the case.
Secondly, such correspondence immediately raises the issue of professionalism. A judge must be able to carry out his duties using his finest abilities.
If a judge, despite having gone through training, is unable to make legal assessments about the case at hand, he should honestly re-evaluate whether he possesses the needed capability required in the profession in the first place.
A mediocre judge, although impartial, can be as dangerous to civil liberties as any corrupt judge.
Thirdly, when a judge makes it a habit to contact other judges for various opinions and then follows those that fit with his particular interests, he cannot be said to have integrity at all.
There is a clear lack of integrity when he asks for opinions from another judge mainly to get peer moral support in order to punish those he may not like. Integrity also becomes an issue when a judge acts inconsistently in similar cases.
Finally, while ethics, professionalism and integrity are vital elements to help purify and sanctify the delivery of justice, an independent judiciary must, furthermore, avoid creating wrong expectations.
This is because improper judicial correspondence tends to create an expectation from the part of the responding judge who believes that the asking judge would comply with his suggestions.
If, in reality, it turns out that this has not been the case, this may unfortunately lead to resentment.
Such a scenario could practically arise when a judge of a lower court has asked for an opinion from a judge of an appellate court but then acted in contrast with it.
When the lower court’s decision is appealed against at the appellate court, the appellate judge, out of ego and resentment, quickly reverses the lower judge’s decision simply to prove that he alone had been right.
Wrong expectations do unnecessarily complicate the case.
In a land where the independence of the judiciary from other branches cannot be guaranteed yet, people can only hope that there is the independence in the judiciary itself by having each judge make decisions to the best of his ability and in his own conscience.
Preap Kol is executive director of Transparency International Cambodia.