The burden of judges

To be a judge is no easy task.

To be a lawyer alone is an arduous academic undertaking, and to be a judge even more so. But I don’t intend to speak here about the long hours of stress, study and preparation involved, or even the amount of effort and constant review that must be put into even being competent in such a demanding job. What I’d like to focus on here is the burden of responsibility that must be borne by a judge, and the exceedingly high ethical standard to which judges – ideally – must hold themselves to.

As an example, here are excerpts from the New Code of Judicial Conduct that every judge is expected to uphold:

Canon 1 Independence

Judicial Independence is a pre-requisite to the rule of law and a fundamental guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial independence in both its individual and institutional aspects.

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Section 8. Judges shall exhibit and promote high standards of judicial conduct in order to reinforce public confidence in the judiciary, which is fundamental to the maintenance of judicial independence.

Canon 2 Integrity

Integrity is essential not only to the proper discharge of the judicial office but also to the personal demeanor of judges.

Section 1. Judges shall ensure that not only is their conduct above reproach, but that it is perceived to be so in view of a reasonable observer.

Section 2. The behavior and conduct of judges must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done.

That the level of independence and integrity expected of a judge is exceptional is evident from the fact that not only must judges act ethically, but they must also give the appearance of acting ethically. Is this an extraordinary burden? Undoubtedly, as most people have enough difficulty with merely acting ethically, much less worrying about the appearance of the same. But is this burden necessary for a judge? Again, without a doubt.

The reason is that to be a judge is not simply to take on the job of an individual – it is also to represent the institution of the judiciary, and the very concept of the rule of law. A judge’s acts are not merely the acts of an individual – as stated in the influential “Judicial Decision Making Gender Protocol” created in Mexico and cited by the UN: “Judicial decisions have both an individual and a collective power. They impact the most intimate details of everyday life, and they also shape the identity of the judiciary. Judicial decisions thus play a major role in defining the character of a democratic nation and in giving meaning to the rule of law.”

This is why the ethical standards applied to justice must be so high, and why the Supreme Court must be rigorous and swift in ensuring this compliance. One of the repeated themes I’ve tackled in this column is the need for there to be checks and balances to power – and as most everyone that has appeared in a courtroom knows, there are few instances of power as absolute as that of a judge in their courtroom. It is inevitable that in such situations, there would be judges unable to meet the standards of behavior required of them. And when this happens, there must be consequences.

One example in the news recently was the suspension of a judge for uttering homophobic slurs. The Supreme Court adopted the recommendation of the Judicial Integrity Board for sanctioning a judge who: that at a preliminary conference, the latter showed bias and partiality against the litigants and their sexual orientation by persistently asking them if they are homosexuals and telling them that homosexuality is a sin. The Judicial Integrity Board and the SC both found that the accused judge failed in his duty to ensure equal treatment of all and to understand diversity arising from sexual orientation and religion, and duly fined him and suspended him for 30 days for simple misconduct and conduct unbecoming of a judge.

Human beings are always influenced by their environment – by the way they were raised, the society they grew up in, by the beliefs they are exposed to. This is as true of judges as it is of anyone else – but judges do not have the luxury of merely accepting human nature. A judge must have the self-awareness to be aware of their own biases, the lenses by which they see the world and they must have the strength to put these aside when they perform their task. More than that, as the Code of Conduct requires, they must be able to show to the public that they have set aside their biases, to performatively demonstrate their impartiality. A judge must have the broadness of mind to be able to see their own actions from the perspective of others who do not share their background, their beliefs, their traditions.

In this case the judge admitted to “having settled 101 cases using the Bible” and, even giving his intentions the benefit of the doubt, it’s clear he was unable to see how prejudicial and oppressive his use of his religion would be to those that did not share his beliefs. While religion can be a source of personal inspiration and moral principles, it should have no place in the application of the law over citizens who have the right not to be prejudiced by their own religious beliefs.

A judge’s mind is the conduit of the law, and when it is too narrow it can deny just treatment and due process to those that need it the most. This is anathema to what a judge should be: the most immediate means of recourse, the vanguard of legal relief.

To be a judge is no easy task. Nor should it be.

In the words of Justice Vicente Mendoza: “To be a judge means to know the community in which you are to function. … To be a judge means embracing new values, norms and attitudes, as well as observing certain restraints upon one’s conduct and upon one’s behavior. … To be a judge is to be a better person than one has ever been.”