Constitution: Judges under vetting microscope

What the Vetting of Judges and Magistrates Bill 2010 demands from magistrates and judges amounts to applying for their jobs all over again and being interviewed by a team of very highly respected professional people. On integrity the Bill demands that the magistrates and judges should demonstrate consistent history of honesty and high moral character in professional and personal life; respect for professional duties arising under the codes of professional and judicial conduct; and ability to understand the need to maintain propriety and the appearance of Propriety .

This means the manner in which magistrates and judges have been working by reporting on duty as and when they pleased will now be a thing of the past. The Bill gives the Vetting of Judges and Magistrates Board very strict methods to use in order to find out whether the judges and magistrates they are vetting will be fair in exercising their duties. It says magistrates and judges being vetted will be expected to demonstrate to have the ability to be impartial to all persons and commitment to equal justice under the law.

It also says open-mindedness and capacity to decide issues according to the law, even when the law conflicts with personal views will be an important attributes for judges and magistrates to have. The Board will also be expected to look at the judges and magistrates’ temperament which shall include but not limited to demonstrable possession of compassion and humility; history of courtesy and civility in dealing with others; ability to maintain composure under stress; and ability to control anger and maintain calmness and order.

They will also be expected to have very high standard of judgment which will include common sense, elements of which shall include but not limited to a sound balance between abstract knowledge and practical reality and in particular, demonstrable ability to make prompt decisions that resolve difficult problems in a way that makes practical sense within the constraints of any applicable rules or governing principles.

On legal and life experience the Bill demands the Board to look at the amount and breadth of legal experience and the suitability of that experience for the position, including trial and other courtroom experience and administrative skills; broader qualities reflected in life experiences, such as the diversity of personal and educational history, exposure to persons of different ethnic and cultural backgrounds, and demonstrable interests in areas outside the legal field.

The Bill expects the Board to find out whether the judges and magistrates have demonstrable commitment to public and community service: elements of which shall include but not limited to the extent to which a judge or magistrate has demonstrated a commitment to the community generally and to improving access to the justice system in particular.

The Bill demands the Board to consider information gathered in the course of personal interviews with the affected judges and magistrates as well as their records to be confidential. It says every judge or magistrate to be vetted shall be given sufficient notice which shall include a summary of complaints, if any, against the judge or magistrate. For this reason the hearing by the Board may not be conducted in public, unless the concerned judge or magistrate requests a public hearing. It also says the rules of natural justice shall apply with reference to the Board’s proceedings.

The Bill says that a judge or magistrate who submits to vetting shall be entitled at their own cost, to legal representation. According to the Bill the first judges and magistrates to be vetted shall be the Court of Appeal Judges, followed by Judges of the High Court, the Registrar of the High Court, the Chief Court Administrator, Chief Magistrates and others in that order. Upon finding on the face of record that a serving judge or magistrate should be removed, they shall be required to immediately proceed on leave.

According to the Bill the Board shall inform the concerned judge or magistrate in writing of the final determination including reasons for the determination. Once informed of the decision the judge or magistrate shall be deemed removed. The decision to remove a judge or magistrate from service shall be made public. According to the Bill a judge or magistrate, who has undergone the vetting process and is dissatisfied with the determination of the Board, may request for review by the same panel within seven days of the determination.

The Bill says the Board shall not grant a request for review unless the request is based on the discovery of a new and important matter which was not within the knowledge of or could not be produced by the judge or magistrate at the time the determination or finding sought to be reviewed was made provided that such lack of knowledge on the part of the judge or magistrate was not due to lack of due diligence; or on some mistake or error apparent on the face of the record. The Bill also says the decision by the panel under this section shall not be subject to further review or question in, or review by, any court.

The Bill explains that the vetting process once commenced shall not exceed a period of one year. The vetting of Court of Appeal judges and judges of the High Court shall be finalized within three months; the vetting of magistrates shall be finalized within six months; and all the requests for reviews granted shall be considered after the vetting of all judges and magistrates shall be finalized within one month. It also explains that the Board shall stand dissolved within thirty days of the execution of its mandate upon which this Act shall lapse.

The Bill is not just on the fault finding mission. In fact it offers very generous terms to the judges and magistrates it will show the door after the entire exercise. It says a serving judge or magistrate shall elect within three months of the commencement of the Act whether to be subjected to the vetting process; or to leave judicial service voluntarily. A judge or magistrate who elects to leave judicial service voluntarily or is found unsuitable after vetting shall be entitled to terminal benefits for early retirement calculated on the basis of the number of years served. It generously says that a judge or magistrate who voluntarily leaves service or is found unsuitable after vetting shall be deemed qualified for early retirement.