Opinionista Oscar Van Heerden 24 July 2019

Why judges practise judicial lockjaw and avoid public extrajudicial activities

Judicial lockjaw is a phenomenon of self-censorship that prevents judges from speaking out about the judicial process and from pursuing extrajudicial activities. How far should it be taken?

Listening to Chief Justice Mogoeng Mogoeng addressing a crowd at the 67 Minutes leadership talk hosted by the People Matter Foundation recently got me thinking about judicial lockjaw and extrajudicial activity by our judges.

Investigating the topic, I came across various arguments for and against these two matters. In an academic paper researched by Leslie Dubeck at the University of Pennsylvania, “Understanding Judicial Lockjaw: The Debate over Extrajudicial Activity”, it was made clear to me that there is much to be considered with regard to this critical matter.

To state up front, I am uncomfortable with overt extrajudicial activity by our justices and certainly, I have a huge problem with the nonpractice of judicial lockjaw.

About 70 years ago in the US, we are told that Justice Felix Frankfurter noted that he suffered from “judicial lockjaw” – a phenomenon of self-censorship that prevents judges from speaking out about the judicial process and from pursuing extrajudicial activities. Although constitutional and statutory law do not mandate such censorship, factors such as peer pressure and judicial culture, fear of negative public reaction and the judge’s conception of his or her responsibility in a constitutional democracy contribute to such judicial lockjaw.

Now, of course, the public is the arbiter of whether such activities are appropriate or inappropriate and as such, it is important that public discourse about extrajudicial activities be grounded on sound arguments.

So, what precisely are extrajudicial activities? The paper tells us that the Oxford English Dictionary defines extrajudicial as lying outside the proceedings in court. Extrajudicial conduct thus literally includes all conduct outside court proceedings. This note includes ex officio activities, academic activities and public speeches.

Now, a judge could (the paper contends) abstain from all extrajudicial activities and thus avoid criticism in respect thereof. This approach, however, denies the public important benefits and unnecessarily constrains the judge.

Judges, like all citizens, can contribute to the public discourse and by virtue of their institutional knowledge and expertise, are in a unique position to be leaders in our democracy. One cannot argue against such sentiments, but there is a deep-seated understanding that high court justices, including Constitutional Court justices, are held to a different standard of behaviour than their counterparts in the legislative and executive branches.

I’m sure some of you will agree with me that the Constitutional Court wields significant power and is the public face of the judicial branch, therefore ill-advised extrajudicial conduct by a Constitutional Court Justice has the greatest potential to yield bad effects.

The paper continues and states that the flipside of that coin, however, is that Constitutional Court Justices, because of their prominence and their knowledge of and influence on nationally divisive issues, may have the greatest ability to contribute to public debate.

Judicial lockjaw has been justified as critical to protecting the separation of powers, encouraging the public’s allegiance to the judiciary and acceptance of judicial decisions, ensuring that judges devote adequate time and energy to judging and promoting impartiality. In other words, the three main arguments put forward in this debate are:

  1. Protecting the separation of powers;
  2. Encouraging judicial allegiance and public acceptance; and
  3. Promoting impartiality.

I would imagine that on the first matter, it would be best that justices do not make public their views on the other two branches of government because to do so might adversely affect the judiciary and/or the other two branches. For example, any justice who would make his views known with regard to what he might be thinking of the conduct of the president of the republic or this or that minister will prejudice such justice if at a later stage he is expected to apply his legal mind on such very characters and their respective conduct.

Similarly, we expect the executive branch and the legislative branch to be very careful as to what they respectively express about the judiciary or justices. This sort of behaviour would indeed be equally unacceptable.

This brings us to the next argument, that of encouraging judicial allegiance and public acceptance. Here, the argument is simple: unbecoming judicial activities will undermine judicial allegiance and public acceptance of judicial decisions. You would recall the vivid photos of a judge, in his car, drunk as a skunk, and having crashed into the wall of a private citizen. It would be safe to assume that judgments from this judge would be looked upon with suspicion from the public because his extrajudicial activity has cast aspersions on him and his fitness to hold such high office in our judicial system.

The third argument concerns itself with the impartiality of our courts and indeed their respective justices. This is a simple matter as far as I’m concerned: if due to extrajudicial activities or the non-practice of judicial lockjaw, a judge expresses an overtly religious view or opinion perhaps, this could call into question such a judge’s legal judgment on matters such as abortion, homosexuality, rape and much more.

If the Chief Justice feels compelled to make statements about white monopoly capital and its role in graft and corruption, or indeed about a specific family and its role in such criminal activities, it surely means the Chief Justice will be inclined in a specific direction when it comes to applying his mind to these matters or individuals?

Can we thus expect the necessary impartiality from the apex court in our land? Now, I’m the first to acknowledge that during the golden age of our Constitutional Court, we in South Africa have always had a progressive bench of judges and they have expressed their respective opinions on many matters, but with the maturity of our democracy and with party political politics becoming much more intense over the years — and indeed in no small measure with the sharp increase of “lawfare” in our courts — it seems to me that our judges must become more circumspect with regard to extrajudicial activities and judicial lockjaw.

The one exception to all this is, of course, judicial scholarship. We, of course, want our justices to actively contribute to the development of jurisprudence, examine all manner of case law and retrospectively analyse judgments of yesteryear. Now it is true that many of these arguments are premised largely on the public’s perception of these extrajudicial activities of the judiciary. These arguments all make claims that the public reaction to such extrajudicial activities is one of the following:

  1. Extrajudicial conduct weakens the judiciary by tarnishing its public image;
  2. Extrajudicial conduct prevents a weakening of the judiciary by protecting its public image;
  3. Extrajudicial conduct threatens judicial allegiance;
  4. Extrajudicial conduct promotes judicial allegiance; and/or
  5. Extrajudicial conduct creates the appearance of partiality.

There will always be for and against arguments in this debate. However, it behoves the justices in our country to engage with this debate and indeed to consider each argument very carefully. A pattern should not emerge where judges feel they can simply say and do as they please without any regard for their respective actions and utterances. Some will always argue that such activities will impart real benefits to society, because of the special expertise of judges. Others, however, argue that care must be exercised and that judicial lockjaw is perhaps the best way.

You be the judge! DM

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