Introduction I think that it was Woodrow Wilson who said: If I am to - - PDF document

1 COMMERCIAL DIVISION – BAR BENCH – INN OF COURT COURT ETIQUETTE

Introduction I think that it was Woodrow Wilson who said: “If I am to speak ten minutes, I need a week for preparation; if 15 minutes, three days; if half an hour, two days; if an hour, I am ready now.” It was the other Wilson, Edward O. Wilson who said: “I will be brief. Not nearly so brief as Salvador Dali, who gave the world’s shortest speech. He said, “I will be so brief I have already finished” and sat down”. Mind you I think that George Burns had it right when he stated that: “The secret of a good speech is to have a good beginning and a good ending, then having the two as close together as possible.” The Bench Let me begin by acknowledging that portions of this paper were prepared and presented by Hon. Mr. Justice Bosire to the judges during the 2009 Judges Colloquium and Justice Visram’s presentation to the Judges’ Induction Course 2011. Judges occupy a special position in society. They come from different backgrounds with varying assumptions, beliefs and unique life experiences. Some of the judges were picked from both the public and private sectors; some from the practicing bar and others from the lower courts within the judiciary. Together, they represent a rich diversity of experience and knowledge that enriches the judiciary. The respective past of those appointed may be of great value as they carry

• ut the judicial role, and at the same time it must be kept in check because as Judges they must

learn to separate themselves as citizens from their positions as Judges. The Role of The Judge The Supreme Court of Canada had occasion to consider the role of a judge in society in the case of Therrien v. Canada (Minister for Justice) and Another [2001] 5LRC 575. On

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second appeal to the Supreme Court, that court in its consideration of the role of a judge quoted with approval the following words from The Canadian Legal System [1977], by Prof. G. Gall: “The dictates of tradition require the greatest restraint, the greatest propriety and the greatest decorum from the members of

• ur Judiciary. We expect our Judges to be almost superhuman

in wisdom, in propriety, in decorum and in humanity. There must be no other group in society which must fulfill this standard

• f public expectation and, at the same time, accept numerous

constraints.” That court itself thereafter said: “The Judge is in “a place apart” in our society and must conform to the demands of this exceptional status.” Madan J.A, put it differently but to the same effect, in the case of Butt v. Rent Restrictions Tribunal [1982] KLR 417 at p.419. “A judge is a judge whether he is newly appointed or an old fogy. The former has the benefit of his latest learning, and the latter the advantage of experience. Both are men of honour and scholarly gentlemen. Both are conscientious and judicious individuals, imbued with reason. Both are dependable and do not make wild surmises. Both act upon consecrated principles. Both get a fair share of justice spills. Both are jealously scrupulous and impartial. Both are 24 carat gold. Both act free from doubt, bias and prejudice. Both carry the conviction of correctness of their decision. Both speak no ill of any litigant. Both are torch bearers for stability of society. Both are strugglers for liberty. Neither should however become an adviser instead of an adjudicator.”

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It is clear from the excerpts quoted above, that the standard of conduct expected of a judge, be it in Canada, in Kenya or anywhere else in the world, is high. That is because the judge is the pillar of the entire judicial system, of the rights and freedoms which that system is designed to promote and protect, and the ideals of justice generally. The court in the Therrien case earlier cited, was categorical that the personal qualities, conduct and image that a judge projects affects those of the judicial system as a whole and, therefore, the confidence that the public places in it. For that reason, and there is no doubt about that, the public is entitled to demand irreproachable conduct from anyone performing a judicial function. The famous American Judge, Mr. Justice Benjamin N. Cardozo in the book “The Nature of Judicial Process” 1921 at p.141 summarized the exercise of judicial power as follows: “The judge even when he is free is still not wholly free. He is not to innovate at pleasure. He is not a knight errant at will in pursuit of his own ideal or beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and irregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains.” It is becoming of a judge to be guided by the rule of law and therefore decide cases on the basis of evidence and known legal principles.

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The Judge in Kenya: In considering the subject, the accepted standards of behaviour of judges, one has to consider the conduct of the Judges in and out of court. Before examining the conduct becoming of an individual judge it is important to state that principles of constitutionalism, upholding the rule of law, judicial independence and impartial independence, public confidence in the judiciary goes hand in hand with the integrity of

• judges. The judiciary requires a high degree of independence in order to fulfil its

constitutional role to adjudicate impartially and to stand up to political pressure. Where the above-mentioned principles are lacking for one reason or another, it would be difficult for judges whether individually or collectively to meet the high threshold of the

• ffice they hold. For the first time in Kenya’s history the independence of the judiciary is

now enshrined in the Constitution. This means that the judiciary shall decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct

• r indirect, from any quarter or for any reason.The conduct of a judge in Kenya is guided

by the provisions of the new Constitution, the Judicial Services’ Code of Conduct and various international Codes of Conduct such as the unreservedly upheld Bangalore Principles on Judicial Conduct adopted by an international gathering of Chief Justices in

• 2001. The Judicial Service Code of Conduct and Ethics Regulations clearly spell out

principles on impartiality and integrity of judges, conditions under which a judge may disqualify himself from hearing a case, social and recreational activities that a judge may engage in, the extent to which a judge may engage in civil, charity and fiduciary

• activities. The regulations provide that a judicial officer and any officer in the Judicial

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Service should not accept any property or benefit of any kind, in the discharge of his duties or by virtue of his official position. The Bangalore Principles set out what are now considered as universal standards of judicial conduct for judges whether in national, regional or international tribunals. The Bangalore Principles are primarily directed at judiciaries for implementation and enforcement, rather than the state. The Bangalore Principles set out six core values that should guide the exercise of judicial office, namely: independence, impartiality, integrity, equality, propriety, and competence anddiligence. Under each value the principles describe specific considerations and situations of which judges should be aware in order to ensure the maintenance of, and public confidence in, judicial integrity. In the case of propriety, for example, the principles highlight the fact that the position of judge is one that carries significant responsibility and weight, and so a judge must accept restrictions that would otherwise be considered burdensome. These restrictions include not fraternizing with members of the legal profession who regularly appear before the judge in court, or not allowing family members to appear before the judge’s court as parties or lawyers since both give rise to the perception of favouritism and lack of impartiality, and undermine confidence in the administration of

• justice. The focus on practical guidance and specificity, compared to other international

standards, makes them of direct utility to members of the judiciary. (i) The Judge Out of Court – The public expects judges to strive to conduct themselves in a way that will sustain and contribute to public respect and confidence. As people set apart for the special purpose of judging, they must avoid interaction with people of

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questionable character and integrity, avoid visiting places regarded as being below the dignity of a judge and generally avoid social and economic activities which, in the eyes

• f the public, either conflict with the office of a judge or which from an objective view

would not accord with the dignity of a judge. The judge should use his conscience to tell whether what he or she seeks to do is proper.The standard of conduct expected of judges is high and some of us may not hope to attain it all the time. Lord Denning recognized this in the case of Jones v. National Coal Board[1957]2QB 55:- “Such are our standards. They are set so high that we cannot hope to attain them all the time. In the very pursuit of justice,

• ur keenness may outrun our sureness, and we may trip and fall.

That is what has happened here. A judge of acute perception, acknowledged learning, and actuated by the best motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties – nay, each of them – has come complaining that he was not able properly to put his case, and these complaints are, we think, justified.” Although the standard set for judges is high, it is not unreasonable to expect them to strive to reach the mark. It is when the public fail to see the judges making any effort in that regard that they condemn them. (ii) The Judge in Court. Article 160 of the Constitution of Kenya, provides that in the exercise of judicial authority, the judiciary, as constituted by Article 161, shall be subject only to the Constitution and the law and shall not be subject to the control or direction of any person or authority. To be independent means that a judge decides cases

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• n the basis of the evidence regularly tendered before him or her, and the law. There

should be no external influence to reach a decision. It is also recognized that the justice

• f each case requires that justice be done and also be seen to be done. Judges are vested

with immense powers and responsibilities. So whatever judges do in exercise of that power should, of necessity, give the appearance of independence, impartiality and

• integrity. All these are intertwined and it is difficult to demonstrate one without the
• ther.A judge needs to show independence, impartiality and give integrity to the

proceedings before him, when he/she starts the proceedings on time or if he/she is not able to, for one reason or another he/she should, as a matter of courtesy, apologize for

• lateness. He/she must show that he/she understands the issues in the case before him/her.

He/she must allow the parties freedom to present their cases subject of course to reasonable intervention to seek clarity; to exclude irrelevancies; and discourage repetition in order to keep the proceedings on course. He/she must use appropriate language in court and maintain judicial temper. In other words the judge must act with restraint even in the face of extreme provocation. It is not uncommon for advocates and litigants to lose their temper and throw a tantrum. In such cases there would be the temptation to invoke contempt provisions. In the English case of R. v. Commissioner of Police of the Metropolis[1968] 2 QB 150, guidance is given that a court should be slow to invoke contempt provisions as a means of upholding the court’s own dignity. Again, Lord Denning expressed himself thus in the matter: “This is the first case, so far as I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs

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to us but which we will most sparingly exercise; more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations.” Apart from the integrity of proceedings there is the issue of integrity of judicial decisions. A decision has integrity if it conforms to form in appropriate cases, is well reasoned and has the appearance of having been considered. Then there is the language of the

• decision. The High Court and Court of Appeal are courts of record. Their decisions

serve as judicial precedents. The language of the judgment is therefore expected to be clear and sober. Sarcastic and derogatory language has no place in judicial decisions. In Okeno v. R. [1972] EA 32, the Court of Appeal for East Africa remarked: “Sarcastic and derogatory remarks in relation to the defence case have no place in a judgment. A dispassionate approach and clear findings of fact, are more indicative of a judicial approach, and do not lay the magistrate open to a charge of possible bias.” Using inappropriate and possibly derogatory or contemptuous language does suggest that a Judge is not dispassionate in his/her approach and the inevitable conclusion that may be drawn from it is that he/she was biased or vindictive or unfeeling.A judge is expected to demonstratively show independence, impartiality, competence and integrity in the performance of his/her work. He/she is also expected to show fairness and good faith. Independence, integrity and impartiality all go hand in hand. As stated earlier, it may not be easy to show integrity without at the same time showing independence and

• impartiality. Judges are vested with immense powers. The power belongs to the people

who through their representatives have donated the power to the judges through the

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Constitution and legislation. So a judge, in exercise of those powers is accountable to the people, through the quality of his/her decisions and the integrity of those decisions. Judges are accountable to their conscience and to God. Lord Mansfield C.J. expressed himself in the following terms in the old English case of R. v. Wilkes:- “We have to say, what we take the law to be: if we do not speak

• ur real opinions, we prevaricate with God and our own

consciences.” And later the learned Chief Justice continued as follows:- “I will not do that which my conscience tells me is wrong, upon this occasion; to gain the huzzas of thousands, or the daily praise

• f all the papers which come from the press. I will not avoid

doing what I think is right; though it should draw on me the whole artillery of libels; all that falsehood and malice can invent,

• r the credulity of a deluded populace can swallow…… Once for

all, let it be understood ‘that no endeavours of this kind will influence any man who at present sits here’.” Delay in delivering justice has hitherto been a serious indictment against the Judiciary in

• Kenya. Various attempts have been made to improve the situation including fixing the

time within which decisions have to be given after completing hearings. They have not borne much fruit. Delays in delivering judgments and rulings affect the integrity of those decisions and the Judiciary as a whole. Such delays, may, in certain cases, suggest corruption even though it may be absent; or that there is one form or the other of impropriety even thought that may not be so. Suffice it to say that any prolonged delay raises suspicion of impropriety. The result of this is that, however good the judgment or ruling might be its integrity, is adversely affected. The question of delay in delivering

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judgments and rulings has been the subject matter of several judicial decisions. In Goose

• v. Wilson Sandford and Co. Times Law Report 19th February, 1998, the Court of

Appeal in England considered a case in which Mr. Justice Harman had delayed a

• judgment. That court rendered itself thus:-

“Compelling parties to await judgment for an indefinitely extended period prolonged, and probably increased the stress and anxiety caused by litigation, and weakens public confidence in the whole judicial process. Left unchecked it would be ultimately subversive of the rule of

• law. A situation like this must never occur again.”

The issue of delay was considered by the Court of Appeal in Kenya, subsequently, in the case of Elizabeth Braganza v. Tyson Habenga Limited, Civil Appeal No. 285 of 1997. Akiwumi, J.A. after quoting the above passage, rendered himself thus:- “These observations aptly apply to the nearly sixteen months’ delay of the learned judge delivering her judgment which is the subject of the present appeal. A judgment so delayed like the one involved in the present appeal lacks credibility as a judgment and for my part and for this reason alone, I would have allowed the appeal.” In the same case, Tunoi J.A. re-echoed those sentiments and himself stated as follows:- “In this case the delay was too inordinate and should not have

• ccurred unless there were compelling reasons which should

have been explained in the judgment. No doubt by the time she wrote her judgment, human as she is, the learned judge lacked the “feel” of the case. Also the length of time between hearing

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the case and writing of judgment gave rise to suspicion that a miscarriage of justice had occurred through submissions being forgotten or lost.” A delayed judgment without any justifiable cause lacks integrity and so does the judge who delivers it. As was stated by Prof. G. Gall, in the passage I quoted earlier reproduced in the case of Therrien v. Canada (supra), judges are expected to be above everyone else in humanity. Prolonged delay in delivering judgments and rulings is a sign that the judge concerned lacks humanity, and does not respond to his/her conscience. It is doubtful that his or her conscience doesn’t tell him or her that it is wrong to do so. I am wondering aloud whether if the judge and the litigants would swap positions the judge would tolerate the delay. It is not conduct becoming of a judge to delay delivery of judgments and

• rulings. In his excellent paper on the subject of conduct becoming of a judge delivered at

the Judges’Induction Course 2011, Mr. Justice Visram concluded by emphasizing that acode for judicial conduct without an effective monitoring and enforcement mechanism will remain and be seen as a set of pious platitudes. Therefore establishment of formal judicial complaints mechanisms is necessary and is consistent with judicial independence under international, regional or national standards. Such complaints mechanisms do not stop with the advent of the Judiciary Ombudsman. In my view, judges need to be signed up to performance contracts and there should be a direct avenue of complaint to the Judicial Service Commission for members of the Bar. Such mechanisms will protect judicial independence by keeping the political branches of government at arm’s length. Discussions among judges at the national level on issues of judicial conduct and accountability, and the need to uphold adequate standards must be encouraged. It is important that judges strive to improve the image of the Judiciary and enhance its image

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and performance for the benefit of the people of Kenya. Only then can public confidence be restored in the Kenyan Judiciary. The Bar A simple but unfailing precept for counsel to follow in the conduct of their professional dealings is “Do unto others as you would have done unto yourself”. A good reputation as a fair, honest and polite advocate is hard earned, but easily lost. Etiquette, in the professional context of the Bar and the Courts, is the customary behaviour, good manners and courtesies extended between counsel, and between counsel and the Bench. The object

• f etiquette is to put everybody at their ease, whatever their seniority. Manners and
• bservation of etiquette should come naturally to members of the Bar. Counsel should, in

their professional dealings, conduct themselves in a manner which shows consideration for others. As regards their dealings with the Court, counsel must, at all times, conduct themselves with common honesty and decent behaviour. In doing so counsel should conduct themselves appropriately and extend the following courtesies to Court:

• 1. Counsel are officers of the Court and have the great privilege of appearing before the

Courts on behalf of others. Accordingly, they should respect the adversarial system and those who work within it.

• 2. Advocacy is not advanced by a slovenly appearance. When appearing in Court,

counsel should speak properly and clearly, and in a manner which allows them to be

• heard. Counsel should avoid unattractive mannerisms, such as slouching, placing feet
• n furniture or standing jiggling change in pockets.

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• 3. Counsel should stand when addressed by the Court, marking the respect accorded to

the Court. Counsel may remain seated when the Court is addressing the Bar table

• generally. In recent times, there has developed a practice, particularly at directions

hearings by junior members of the profession, for all the representatives of parties in a case to remain standing whilst one representative addresses the Court. Counsel should politely request any other practitioner to sit whilst he/she addresses the Court, in order to avoid any embarrassment to the Court and to avoid any uncertainty as to who is making the submissions and when they have been completed.

• 4. Counsel should not be rude to the Court, to fellow members of counsel, or to

instructing advocate or to witnesses, even in arduous circumstances.

• 5. The Court may not be aware of the seniority of all members of the Bar appearing

before it. Counsel ought to observe seniority to ensure that the Court is not

• embarrassed. Where the Court does not otherwise provide, then determining

addresses by reference to seniority preserves an orderliness and respect for the Court.

• 6. It is a discourtesy to the Court for counsel to leave the bar table empty when the judge

comes onto or leaves the bench. Counsel should not leave the bar table at the conclusion of their case until the next case is called. In the same vein, counsel should ensure that their movements around the courtroom are conducted in a manner so as not to distract the judge from the matter proceeding before him/her. Counsel should avoid unnecessary chatter in the courtroom while waiting for their matter to be

• reached. Mobile telephones should be switched off and any accompanying headsets

should be packed away. Counsel should never pass between the bench and the witness box during the giving of testimony. When a witness is being sworn or making

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an affirmation, counsel should not speak and should refrain from making any distracting movements at the bar table.

• 7. Counsel should be punctual. When appearing in a hearing over a number of days,

some counsel become more relaxed about attending Court on time, especially after a lunch adjournment. Whilst some members of the bench are prepared to wait in the Court corridors until all counsel have assembled, being late is a great discourtesy to the Bench, to opposing counsel, to the clients and the witnesses. Further, during a trial, opposing counsel may wish to discuss some issues over an adjournment. Discussions should either be commenced in a timely manner so they can be concluded for the Court to recommence on time, or further time should be sought from the Bench through the Court clerk. Demonstrating a lack of respect for the Court by lack of punctuality does not help advance the interests of the client or the standing

• f the advocate before the Court.
• 8. If counsel is late and has caused delay in the commencement of the Court session,

he/she should proffer a proper apology to the Court and to opposing counsel immediately.

• 9. Advocates may appear before judges or arbitrators with whom they are socially

acquainted or with whom they have developed a personal relationship through their

• practice. In those circumstances, an advocate must not, in the presence of any of the

parties or advocates, deal with a Court or arbitrator in terms of informal personal familiarity which may reasonably give the appearance that the advocate has special favour with the Court or arbitrator.

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• 10. It is a privilege reserved to members of the Bar that on informal occasions an

advocate may address any judge simply as “Judge”. Appointment to judicial rank does not involve, on informal occasions, any need for a change in the style of address previously observed between personal friends who have been in the habit of using first names. On informal occasions in public, however, counsel should use their discretion to avoid any appearance of undue familiarity with judges.

• 11. It is sometimes necessary for an advocate to make an application to the effect that a

Judge should not sit on the case by reason of bias or interest. In those circumstances, the advocate is required to give reasonable notice to all other interested parties of the intention to make the application so as to afford them a reasonable opportunity to make their own representations in the matter. In such applications, advocates must not descend into personal attacks and should maintain their independent judgement and professionalism. Conclusion I hope that what I have detailed to you has not come over or sound like a disciplinary

• lecture. What I have tried to do is to remind the Bench and the Bar alike of the common

courtesies to be observed in their relationship. I count myself lucky to have been on both sides of the legal fence. When I was on the Bench, I never stopped reminding counsel of how busy I was in getting through the judicial timetable. Now that I am off the Bench I never tire of reminding my former colleagues how busy I am with my professional work. Busy people sometimes get short tempered, demanding and quite often, rude. I hope and trust that what I have had to say opens the door to a lively discussion between Bench and Bar alike as to the dos and donts of professional etiquette. Please remember that we are

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all members of a distinguished profession and that it is essential that, in our dealings with the outside world, we maintain dignity and our high standing in the community. Thank you.

• J. B. Havelock

29th September 2016.