Judges are expected to be impartial storytellers, weaving their narratives from the evidence presented to them, considering previous cases with similar facts, and deciding how the law applies to the findings of fact. A judge without impartiality is like a priest without faith. Religion is not an accidental metaphor. Good faith in the judicial system is underscored by a belief in its impartiality.
If you’ve spent time in courtrooms in Canada, England, Burma, and America you’d find the same churchlike devotion to symbolism, ritual, gowns and reverence from those in attendance. Oaths are taken to tell them the truth. Lies made under oath are punished by fines and imprisonment.
Judges sit on an elevated bench looking down as from Olympus at those in the courtroom, and those below look up to them.
Judges are in a business not unlike a mystery author who must tie up the loose ends that explains the story. Unlike most writers they must also be public performers in the ritual of justice.
Edmund Burke wrote, “It is hard to say whether doctors of law or divinity have made the greater advances in the lucrative business of mystery.”
A crime fiction writer may entertain, enlighten, stimulate, provoke or expand our understanding of the psychology of criminal and victim. Judges have the heavy responsibility of knowing their finding of the ‘true’ story has great consequences for the liberty of the people in the courtroom and the society outside of the courtroom. Like all storytellers, judges write decisions that can’t help but reflect their own cultural and personal biases.
Is it reasonable to expect our judges to rise above the prejudices of their history, culture, class, and time?
That is a burning question asked in Thailand where there is talk of a judicial coup to oust the government. Many judicial systems not just in Thailand are bending under the weight of full-scale political conflict. In those parts of the world set on fire with violence and strife, people seek answers about who is judging the authorities inside a political system and who is judging the judges.
Most judges are drawn from the ranks of the ruling elites. They aren’t elected. Judges are vetted and appointed by a narrow spectrum of state officials. They serve for life. During their tenure on the bench, it is fair to ask: are judges main duty to protect the powerful and the system that confers power on them or are judges serving to mediate and protect ordinary citizens who challenge power, conventional wisdom, or dissent from the mythology that power cloaks itself for legitimacy?
“As long as you’re scared you’re on the plantation.” ― Cornel West
To which I’d add, justice cages fear while injustice opens the cage door. Judges act as the gatekeepers, opening and closing the door on the actions of others and state officials who left to their own devices generate fear of among powerless people.
Unlike other storytellers, judges can send people to prison, ban them from civil rights and liberties and political office, overturn laws, regulations and edicts, and select among competing philosophies, norms, and values the ones that become the law of the land.
Judges in many systems exercise by their position considerable power over other institutions of state and over citizens. That is why their role has enhanced importance in times of great dissension and debate about the direction of society.
In the common law countries such as Canada, Australia and the United States (at the state level judges are often elected) and elsewhere in the Commonwealth judges are selected and appointed from the top ranks of lawyers. Lawyers who have proved themselves as not only versed in the law, but who have gained a reputation for qualities of restraint, honor, knowledge, experience, fairness and integrity.
In civil law countries such as Thailand, Japan, and most of Europe, judges enter the justice system soon after law school and work their way under the civil service ladder. The civil law system has a different tradition of recruitment, advancement, and cultural history.
In Thailand, the judges are an important source of power within the context of the political turmoil that has followed since the 2006 coup. A number of decisions on the constitution and laws have created controversy as to the neutrality of the courts to administer justice in light of powerful forces seeking to expel the government. The Thai political system and judicial system are going through a period of credibility crisis.
Distrust of politicians is acceptable if not necessary to ensure that decisions aren’t made for politicians and their cronies but for the people. But distrust of the courts undermines the last resort to monitor and hold the state authorities and those contesting those authorities to resolve their differences within the boundaries of the law.
The players may cheat but the referees are there to keep the game within the rules. If a referee appears, through his calls, to be favoring one side, the game is rigged and a free for all may follow. Thus if a judge is seen to appear at a demonstration protesting for or against the government, he or she has given the appearance of taking sides.
A judge’s authority rests upon the appearance of being neutral. If a member of the federal court in New York had carried a placard at the Occupy Wall Street demonstration, such an act would make it difficult for the judge to appear neutral in a hearing based on the legality of the demonstration and an application for an injunction against the rally organizers.
The quickest way to compromise a judicial system is for the judges to become associated with one faction in a political dispute. The friend of justice is seen as being no friend or enemy of either side to a dispute.
If that appearance of neutrality is shattered, the probability of attacks against the courts rises.
A number of recent stories reporting insurgent attacks on courts suggest they are becoming routine in a number of countries. Courts and court officials are being targeted as combatants on one side or the other in political struggles.
An extreme example of discontent with the court system spilling over into acts of violence is happened in Pakistan on Monday March 3, when a suicide bomber settled scores by blowing himself up in a courtroom, killing eleven and injuring twenty-four people.
In early April 2013, The ABA Journal reported 53 people were killed and 90 injured, including two judges, when suicide bombers attacked a court house in Western Afghanistan.
USA Today reported that in mid-April 2013, in Mogadishu Nine Al-Shabab Islamic extremists in suicide vests and firing rifles attacked Somalia’s main court complex. 16 people including all the attackers were killed
In February M79 the Bangkok Post reported an armour-piercing grenade was fired at the Criminal Court on Ratchadaphisek Road. An earlier this week on Monday 3March The Bangkok Post reported that two M-61 grenades were used in an attack on the Criminal Court in Bangkok by two men on a motorcycle.
It would be mistake to think such attacks are limited to judges and court personnel living in quasi-democratic or non-dramatic countries in the Middle-East, Asia, or Latin America.
Fourteen years ago, in a report titled Safe and Secure: Protecting Judicial Officials violence in the American judicial system was detailed. The report illustrated the rising threats and actual violence against judges, judicial personnel and others working in the court system. Measures such as designing the court building as a ‘harden target’ and the use of of metal detectors and x-rays to detect weapons, alarms, and CCTV cameras were installed as a response to the potential of an attack.
It is one thing to survey and describe the attacks on judges and court personnel, it is quite another to explain why such attacks appear more frequently and with substantial causalities.
One explanation is illiberal, traditional tribal forces are taking their insurgencies to the place where captured insurgents face justice. In Thailand, some have argued that the illiberal, traditional non-democratic forces are protected by applying a double-standard supported by the courts.
In other words, violent attacks on judges and their personnel may originate from deep-seated political conflicts in a society and judges find themselves in the cross-hairs as warring factions demand that court favor their interpretation of justice.
Another explanation is the absence of perceived fairness and impartiality of judges. Seneca confirms this is an ancient issue. “Auditur et altera pars–The other side shall be heard as well.” If one side to dispute believes their side is systematically, as a matter of policy, not being heard along with a perception the judges are automatically siding with the powerful, violence may well follow.
There is, in the Western tradition, a notion that courts, like free speech, are part of the safeguards needed to secure democracy.
Reinhold Niebuhr wrote, “Man’s capacity for justice makes democracy possible, but man’s inclination to injustice makes democracy necessary.”
Courts are places where people in conflict go to obtain justice. And justice is in the quality of the assessment of what story most plausibility emerges from the competing stories told by the parties through witnesses, forensic evidence, and expert testimony.
In time of political chaos, the judges in a political system are called upon to resolve issues arising from the constitution or other laws. The problem is that what is argued as a ‘legal’ issue may have a significant political dimension and that draws the judges into the fray.
Each side of a political conflict seeks to convince the judges of the merits, fairness, common sense and justice arising from the assembly of facts, time lines, and role of actors in the political drama.
What is at stake isn’t found in the ordinary civil or criminal case. State authorities often have a horse in this race. Judges are by their nature also state authorities. The theory has been, while judges are state authorities, part of their job is to keep those authorities in check and to enforce civil liberties on behalf of those challenging what may be abuses of authority.
There is considerable gallows type humor about the courts that goes back many years. Judge Sturgess wrote, “Justice is open to everyone in the same way as the Ritz Hotel.” Raymond Chandler would have agreed as well as any noir fiction writer.
Ignzio Silone said, “An earthquake achieves what the law promises but does not in practice maintain – the equality of all men.”
None of this jaundice about political systems or courts that are an essential part of a functioning political system is new. Tacitus reminded us, “The more corrupt the republic, the more numerous the laws.”
It wasn’t just the Roman who had this view, the author of The Art of War, Lao-Tzu wrote, “The greater the number of laws and enactments, the more thieves and robbers there will be.”
And our cultural view of judges goes from admiration to suspicion as the often-quoted phrase indicates: “Good lawyers know the law; great lawyers know the judge.”
When it comes to the character of judges, one finds a range of opinions, including this one by David Dudley Field, “Judges are but men, and are swayed like other men by vehement prejudices. This is corruption please.”
Corruption, a word that swarms around the hive of anti-government protesters in Thailand, has more than one sting in the tail. As Horace wrote, “A corrupt judge does not carefully search for the truth.” Even if that truth may discredit the actions of the powerful.
That raises the awkward question of what is the ‘truth’ and who is to be trusted with find the truth amongst factions each claiming the prize for themselves?
Even judges of American justice Benjamin Cardozo’s standing recognized the issue: “There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them—inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. … In this mental background every problem finds it setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.”
Cardozo isn’t along, Felix Frankfurter wrote, “No judge writes on a wholly clean slate.”
Each age recreates its own justice system and selects the judges and other personnel to run it. And in each age, the status, reputation, and standing of the judges is reinvented to suit the purposes of the day. Much in our world has been disrupted by technology. Including the courts.
America has a secret court with judges deciding on the scope of government surveillance of its citizens. Thai courts sometimes hold closed sessions in Lèse-majesté cases. Michael Ponsor wrote in The Hanging Judge, “If you want the best evidence of just how strong our democracy is, come into the courtroom.” That’s hard to do if it meets in secret.
Novelist George R.R. Martin had his own idea about the connection between a judge and the justice he administers, “The man who passes the sentence should swing the sword.”
History suggests that once the courts are drawn into political conflict, the seeds of doubt and suspicion are easily sown and fall on the fertile field of doubt in government institutions.
The search for truth, justice, and impartiality is difficult in the best of times, and at the worst of times, hard men take justice into their own hands, sometimes with the tacit approval of the courts, and sometimes for revenge for the suspicion of such back channel signals of approval.
In Thailand, all eyes are on the courts to deliver judgments on a host of legal cases with large social and political implications. In a judicial system where judges have the power to remove prime ministers, sack MPs, and dissolve political parties, the perception of good faith is essential.
Whether the Thai judges, through their decisions in fact-finding and legal reasoning clear a path that appears fair and reasonable is a question on the minds of many. Whether any court of law can be designed or recruit judges capable of making such political decision acceptable to most citizens is another question altogether. Go to Google and type in Thai courts and click on images. This visual montage tells a story about conflict, power, justice, anger, fear and hate, and in the midst of this narrative are the courts seeking a legal way out.