Temple Court, 2, Labourdonnais Street, 11413 Port Louis, Mauritius. (230) 212 9810
Transcendent Judge

How Transcendent is the Role of a Judge?

We see Judges as the ultimate patrons of our laws; the Cerberus of our courtrooms ready to use everything in their power to make sure the proper assessment of evidence is made under their watch.

H.L. Mencken once said “injustice is relatively easy to bear; it is justice that hurts”. In sentencing Robert Vallejo, Judge Thomas Low seemed to have unerringly applied the quote of Mencken in his judgement. This particular Utah Judge made the headlines last month when he made the following comment while sentencing a Mormon Bishop to life imprisonment, “the Court has no doubt that Mr Vallejo is an extraordinarily good man … but great men sometimes do bad things”. It is apposite to note that “bad things” in the case of Mr. Vallejo meant ten counts of forcible sexual abuse and one count of object rape. Victims of this particular ordeal felt that the Judge was more concerned about the person he was convicting than he was of the victims. Faced with such truculence, the victims proceeded to file an official complaint against the Utah Judge. But the question is how effective would those complaints be against the Judge?

The almost transcendental role of a Judge sitting in Court is to interpret laws, assess the evidence presented and control how hearings and trials unfold in their courtroom. But primordially, Judges are impartial decision-makers in the pursuit of justice. As per common belief, the judicial system is here to provide solace to those who have been cheated upon and punish the wrong doers. But what happens when those who turned to the Court, find grievance in the very one person supposed to set everything right? The most ironically logical resolution is to get back in Court. But in reality, how feasible is that? What actions can you take against a Judge?

Under Section 6 of the Public Officers’ Protection Act, a Magistrate is provided statutory immunity, but no such equivalence exists under our law for Judges. However, when faced with the question of judicial immunity, various case laws make reference to the account given by Lord Denning MR in Sirros v Moore [1974] 3 AER 776, which quotes;

“it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action…The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear.”

The aforementioned principle therefore goes to say that the immunity enjoyed by Judges is essential in ensuring freedom of thought, without which there can be no freedom of judgement. In the case of HURNAM D. V. THE STATE OF MAURITIUS 2003 SCJ 54, Honourable Justice Sik Yuen said “Judicial immunity in fact guarantees judicial independence which is an essential prerequisite for a free and democratic state”.

Chapter VII of our Constitution relating to the manner of appointment of Judges, their tenure of office, their removal from office for misbehaviour, and their bounden duty “to do right to all manner of people after the laws and usages of Mauritius without fear or favour, affection or ill will” was heavily commented upon by Honourable Justice K.P. Matadeen in HURNAM D v YEUNG SIK YUEN Y K J 2010 SCJ 373 where it was stated that the very essence of Chapter VII of our Constitution implied personal immunity for Judges from civil suits for conduct in the exercise of their judicial function. Honourable Justice K.P. Matadeen further stated;

“So that over and above what is to be found in the common law, our Constitution allows Judges to perform their functions without fear or favour and without having to look over their shoulder or be distracted, should they decide one way or the other, safe in the knowledge that if they go wrong there will be an appellate court to set them right. And that is why the law has provided a remedy for any party who feels aggrieved by a judgment or order made by a Judge to appeal against that judgment or order”.

Thus, under our laws, Judges and Magistrates enjoy a complete judicial immunity from civil suit. It is not because Judges are considered to be capable of no wrong but for them to exercise their duty with complete independence and free from fear; to better safeguard the democratic values of our Country. The ultimate sceptics will argue that this doctrine is not adequately justified. But being a democratic state, the following citation by Elie Wiesel has proven to be more than just savoir-faire “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”