Judicial integrity and potential pitfalls

Chief Justice Sundaresh Menon shares his views on the importance of judicial integrity in a new book out this month.

The real threats lie not in the obvious, like corruption, but in how a judge works day to day, and his attitude to ordinary tasks in his diary.

It includes the temptation for judges to make short work of small, uninteresting cases or to accept the views of their law clerks without sufficient study.

Such petty breaches mark the start of a slippery slope, he writes in the book, Core Values Of An Effective Judiciary, published by the Singapore Academy of Law.

The book is a collection of conference papers by various Chief Justices of Asia and the Pacific, including China, India and New Zealand and comes at a time when there is increased international interest in promoting judicial integrity to combat judicial corruption.

In March, International Bar Association (IBA) president David W. Rivkin convened a meeting in Singapore on the association's Judicial Integrity Initiative, a flagship project to combat judicial corruption worldwide.

It was attended by judges, Bar leaders, prosecutors and civil society representatives from eight Asia-Pacific nations, including Singapore.

The IBA is the world's leading legal organisation with more than 55,000 lawyers and more than 190 law societies and Bar associations. Mr Rivkin chose Singapore for the meeting "because of its strong tradition of judicial integrity".

In his chapter, Chief Justice Menon underlines integrity as the cornerstone for judges to function effectively.

"Society accepts our judgments because they trust us and because they expect and believe that we will be incorruptible guardians of the law, ultimately that we are men and women of integrity," he says.

Obversely, lack of public trust and confidence in the judiciary's integrity will have "far-reaching consequences on our ability to properly serve our function within society".

Saying it is important that judges possess "the courage and backbone to stand up for and defend their decisions and the reasons for their decisions", he adds: "Integrity is an intuitive concept that draws together ideas of honesty, moral courage, and a proper respect for the integrity of others."

But knowing what integrity means and requires is only half the story; a judge must also consider the potential pitfalls to integrity.

Such threats are not seen just from the obvious, like taking bribes or abusing judicial power. "On the contrary, the lack of integrity is usually manifested far more inconspicuously and subtly in the mundane day-to-day routine of a judge," he writes.

He cites the example of how judges allocate time for the cases they are assigned. "Besides ourselves, there is no possibility of anyone else knowing precisely how we have looked at a particular case; this is strictly a matter of one's own conscience," he says. "There is the constant temptation to give short shrift to small and uninteresting cases which involve issues that seem to be of no consequence to anyone other than the parties."

Such an attitude is untenable, and he points out that small cases are of utmost importance to the litigants and have a legitimate claim to a fair share of judicial time and attention.

Another example could be when judges delegate tasks to law clerks and then "unthinkingly" accept their views without studying the matter closely because of the pressure of time.

Also, appeal judges might face a different kind of temptation - "to effectively cede the decision of the appeal to the member of the court most familiar with that area of law or the case".

"These are all derelictions of duty, no matter how small or inconsequential it might seem and no matter how well we might be able to rationalise what we do," he says.

"Minor as they may seem to be, these so-called petty infractions place the judge on a slippery downward slope.

"When small deviations have become the accepted norm, what is there to stop a judge from succumbing to a more significant infraction?"

Chief Justice Menon says integrity starts with understanding what it means and the moral courage it demands, and cites an anecdote from a biography of former United States president Dwight Eisenhower, involving the legendary US Chief Justice Earl Warren.

The year was 1954 and Mr Eisenhower had invited Chief Justice Warren to a White House dinner. Among the guests was the lawyer arguing a landmark case before the Supreme Court to continue segregation of blacks in the southern states of the US, Brown v Board of Education of Topeka.

The president went to considerable lengths to tell Chief Justice Warren what a great man the lawyer was.

And as the guests were leaving the room after dinner, Mr Eisenhower took Chief Justice Warren by the arm and said of the white southerners who wanted segregation to continue: "These are not bad people. All they are concerned about is to see that their sweet little girls are not required to sit in school alongside some big overgrown Negroes."

Chief Justice Menon writes that despite the "unseemly exertion of pressure" from the executive branch of government, Chief Justice Warren and the rest of the justices all voted in a landmark judgment in favour of the plaintiff, to end racial segregation in public schools in the US, which in turn led to outlawing centuries of oppression that had rested on the colour of a person's skin.

"I think this quite neatly encapsulates what we mean when we say in common parlance that to act with integrity is to be upright and to act honourably," he says. "Having the courage and backbone to stand up for and defend their decisions and the reasons for their decisions is clearly an important judicial quality as exemplified by Chief Justice Warren."

He suggests that the landmark change, one of the landmark victories of the American civil rights movement, might not have come to pass had Chief Justice Warren succumbed to pressures and acted differently.

"Integrity, which encapsulates the quality of being able to stand up for something, becomes the ultimate guarantor of judicial independence," he says.

vijayan@sph.com.sg

This article was first published on May 3, 2015.
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