The conservative and the liberal judge

Sharon Hofisi Legal Letters
How would you imagine the form of adjudication if you decide to file a case in a court of law? Do you remember the story of a goat, hyena and finger millet in our “crossing the river” stories?

Can you wish to have a judge like the eponymous Justice Jackal who saved the man, his dog and food from the Caesar-type of Justice Leopard? Conservative judge, Justice Leopard was seen as the prosecutor, the witness and judge in his forest. Justice Jackal was seen as the flexible, radical, runaway judge.

Can you see liberalism and conservatism developing from our basic idea of what is justice and fair? Just before tragic decisions were made by some powerful animal, some saviour-personality would discover a way to resolve a seemingly inevitable tragedy. I am sure those who are following a local animated drama, “Purazi raSinyoro/Sinyoro’s farm”, can relate with the animal-but-human expectations we are discussing here.

Who can afford to ignore the suspense that came with folktales, soliloquy, interior monologue or psychological realism in folktales? Imagine the happiness of the human family, the intuitive instincts of mediatory animals, the flash fall of shift characters and so forth? Our “Sarunganos” or story tellers didn’t leave us to know everything, but forced us to exercise our mental faculties in a moralistic manner. They said, “this is how the story teller dies”, yet only fools would despise their wisdom and instruction. Wise listeners would see danger and run towards the path of virtue.

A story is often told from our wisdom literature of how some liberal judges juxtaposed their views with those of conservative judges. Young judges wanted to eliminate old judges who wanted to follow rules to the letter. One liberal judge hid a conservative judge in a cave. Years later, a python came to the court of liberals and tried to kill a child. The young judge had to quickly consult the old, but wise conservative judge.

His innovativeness was based on the advice of the conservative judge who told him to go and quickly get what a python loves for the meal — the frog.

He was advised to tie a rope to the frog’s leg and place it in front of the dangerous reptile. When the reptile saw the frog, it let go of the child. The community embraced the liberal judge amid wild jubilations.

But the conservative judge was then presented as the source of the innovative decision-making. The community immortalised both judges and made their decisions part of their society’s common law.

Let’s briefly focus on the formal legal developments in most countries today. What would you think of a judge as a disposition-filled presiding officer? Well, a judge is simply described as the presiding officer in a superior court of law or any other higher court of record. The description shows that there are several characteristics that make up a judge “distinct” from other judges. The major duty of the judge in modern legal systems is to interpret the law in a polity — positive, natural, moral, utilitarian law, and so forth.

We may also add the need to interpret rules (such as those relating to statutory interpretation like mischief, literal, or golden rules), regulations (such as ministerial regulations), presumptions (such as those on the common law or existence of other rights) and legal or judicial doctrines (such as subsidiarity, restraint, avoidance, deference, ripeness, mootness and so forth).

In all this, the judge is sometimes seen as the weak link under in the arm of the State called the judiciary — simply because judges are appointed by the President, a member of the executive.

Generally, judges are neither directly elected into office as is the case with the President and his deputies in Zimbabwe nor are they voted for as is the case with members of Parliament.

In essence, the judge is the constitutionally chosen arbiter of disputes in a society.

He however, just like all arms of the State, derives his authority from the people.

His or her views can set what is called legal precedent or case law authority in a polity.

This may then be considered binding or authoritative if not reversed by other judges of equal or superior jurisdiction.

It may also be considered persuasive if used by judges from other jurisdictions.

The terms “authoritative” and “persuasive” are sometimes used interchangeably. For instance, an authoritative case is so described because a particular judge is persuaded to treat it as such. Equally, a case is of persuasive value because a judge authoritatively regards it as such.

For Zimbabwe, we have a hierarchy of courts which has three superior courts: the High, Supreme and Constitutional court.

There are other courts of record such as the Labour court, Administrative court and so forth which are also presided over by judges. It is difficult to describe our judges using the categories of liberal and conservative since they normally take different viewpoints.

We may perhaps need to look at expectations of what makes a conservative or liberal judge. In a country that has several branches of the law — civil, criminal, human rights, and so forth — why do we need to distinguish between conservative and liberal judges?

It’s my conviction that the temperament of a judge directs us to do so. This is critical when the consumers of judicial decisions analyse the reasons for judgments or why judges either dismiss or uphold certain technical arguments.

We may also further ask the following on what makes a liberal or conservative judge. Is it the mere nomination of a long serving magistrate, lawyer from private practice or commerce by the people or his nomination and subsequent appointment by the President of the Republic?

Is it her mere presence in her chambers or a courtroom?

Is it his ability to dissect the law with unequalled ability or his strong adherence to judicial doctrines such as avoidance doctrine, deference, subsidiarity or judicial restraint?

And does “typical judgeship” mean anything on how legal matters are disposed or the interests of justice are cultivated in a polity?

What would have happened had nine of our Constitutional Court judges in the case of Chawira and others decide to liberally interpret section 48 (right to life), of the Constitution which deals with the Presidential pardon as a matter of right and not just legal procedure? Death-row inmates would have immensely benefited.

At the High Court, what can be said about the conservative approach by the High Court in refusing to outlaw adultery damages in Zimbabwe and follow the South African position? The judge’s approach in protecting the marriage institution is in line with our national objectives relating to the protection of the family, and fundamental rights relating to women and children.

And what would have happened had it been that the High Court had chosen to be liberal in the recent case of MDC v Khupe and others case? If the Court did not want to be flexible on issues relating to the filing of affidavits, as it clearly showed, there was nothing amiss in directing that the papers filed of record by the parties be used either as a declaration (for the founding affidavit filed by the applicants) and plea (for the opposing affidavits filed by the respondents). The judge would have actively contributed to the expeditious referral of the matter for trial-a course of action which he preferred.

We wouldn’t have witnessed the rigmaroles of the appeal process to the Supreme Court and the subsequent referral of the matter back to the High Court for determination on the same issues that were raised by the judge.

Most importantly, we would have seen how the political rights of the parties can be protected and realized in this electoral cycle.

Don’t miss the implications of what might seem to be ‘incidental’ comments in this article. The moment judges in Zimbabwe remove or strikematters from the roll on technical arguments or dismiss cases without reasons, we may quickly describe them as conservative judges.

We may even feel that the High Court judges are liberal when they outlaw Statutes of or provisions from statutes of limitation such as the Police Act or those on State Liability.

We then quickly feel that the Constitutional judges are conservative when they decide not to confirm orders because of certain irregularities. We loathe how they return orders for confirmation back to the High Court in a manner that borders on judicial restraint than innovativeness.

We feel this takes away the benefits of strategic litigation, pierce through vertical accountability and delays justice for ordinary citizens whose rights may have been violated by State functionaries.

But we don’t end there. We also observe the liberal approaches by the apex court in some cases where its judges behave in a liberal manner.

The leading case we often cite is Mudzuru and Tsopodzi case where the court declared as invalid provisions of the Marriage Act which set the minimum age of marriage for girls as 16 years. The provisions, together with those of the Customary Marriages Act which do not even provide an age limit were found to be at variance with section 78 of the Constitution which sets 18 years as the marriage of founding a family.

Predictably, the questions on ‘who is’a liberal or conservative judge in Zimbabwe are difficult to answer.

We can’t help but say that judges everywhere are a curious mixture of emotional weaknesses and emotional strengths. I once wrote that before the development of formal legal systems the law in the form of common law started as nothing more than the emotions of the judge in a polity.

These emotions are still given legal energy in common law jurisdictions. I also wrote about superhuman liberal judges such as Hercules or the eponymous ‘Mutongi Gava’ or Justice Jackal, from Shona folk tales.

Generally, there are some striking similarities between the conservative and liberal judge.

Chief among them and the need to live and breathe the common law and often showed their disdain for officers of the court who do not comprehend various presumptions relating to the common law. Whether the common law is seen as static by the conservative judge or as virile by the liberal judge, it remains the emotional viewpoint of the old judges or some council of the wise in different societies.

There are some differences though. Basically, the conservative judge has a strong belief in the principle of stare decisis, or respect for precedent; has a narrow view of the Constitution, especially the Bill of Rights; and use their power to impose a conservative political agenda.

This type of a judge balances his decisions using political and judicial philosophy.

Rarely is his philosophy developed using the spirit of the time. He or she interprets the law as it was given by the legislature and implemented by the executive through ministerial regulations or delegated legislation implemented by the President.

The goal of this judge is to prevent judicial activism by liberal judges. Simply put, this judge believes the text of an ordinary statute. In some jurisdiction such as the United States, this judge associates with the original meaning of the Statute, ordinary or the constitution. He is not disposed to legal reform; practices restraint, is a doctrinaire or orthodox judge and may even smuggle alien views to support his viewpoints.

US Supreme Court Justices Clarence Thomas, Samuel Alito and Neil Gorsuch have been given this tag (Williams 2017). Other Supreme Court Justices include Antonin Scalia, William Rehnquist, and Byron White.

Justice Gorsuch, who subsequently replaced Scalia, has already planted his flag in arch-conservative positions on the death penalty, consumer rights gun rights and religious freedom (ibid). Conservative judges not only need to practice judicial restraint, they must also take steps to overturn unconstitutional decisions (Hawkins 2017).

The liberal judge usually engages in judicial activism. He is innovative and reforms the law, periodically developing legal doctrines; frequently repealing draconian laws or declaring as unconstitutional exploitative legal provisions within certain Statutes.

He occasionally upholds technical arguments but proceeds to hear matters on the merits. He effectively dispenses justice promptly. Elsewhere, it is believed that former US President Barack Obama, with his reforms in health sector and other areas, and thought to be the successor of the late Justice Antonin Scalia, would have made a good liberal judge had it not been that this move was blocked by Republicans following Donald Trump’s victory over Hillary Clinton.

· Sharon Hofisi is a lawyer and lecturer in Law and Public Administration. Feedback: [email protected]