Chief Justice Margaret H.
Thank you for inviting me to this important conference. I commend the organizers of this conference on focusing on an issue that is so important to your country, and to mine.1 1 I am indebted for these remarks to the "Principles and Standards of Judicial Branch Education", adopted by the Board of Directors of the National Association of State Judicial Educators, effective December 2001 (hereinafter Principles).
The United States, my adopted country, is the oldest constitutional democracy in the world. South Africa is one of the newest constitutional democracies. The political, economic, and social circumstances of South Africa and those of the United States are dissimilar. Our histories differ. Our constitutions differ. Nevertheless we share much in common, especially as it pertains to this conference.
Every day in thousands of courtrooms across the United States American judges attempt to give substance to the founding values of our Constitution - democracy, equality, freedom - just as you do here. As an American judge I seek the same ends as each of you in this room: the delivery of fair, impartial and quality justice to all. It is this that gives me the courage, the license if you will, to address you today on a topic that I consider vital to the maintenance of an independent judiciary - judicial education.
Judicial education. That subject could occupy an entire conference. I will limit my remarks to describing some of the programs that we have instituted in Massachusetts, where I served as the Chief Justice for eleven years, the head of a judicial branch comprised of some 400 plus judges.
I focus on Massachusetts programs not to suggest that we have the best, but to highlight those that have proven most successful . .. from the point of view of the judges who have participated in the programs. My talk today is addressed primarily to the judges in the room, and my focus will be on the education of judges, although the education of other judicial personnel is critically important. Nevertheless, I hope to persuade all, or at least most, of you that continuing, mandatory judicial education lies at the heart of a sustainable independent judiciary.
I will organize my remarks around these questions: WHY BY WHOM TO WHOM WHEN AND HOW And, if time permits, I will talk about the corollary to judicial education, judicial evaluation?
First, WHY judicial education My answer may surprise you?
As many speakers have noted already, there is a sharp distinction between the role of the judiciary in a constitutional democracy, and the role of the judiciary in a Westminster system of parliamentary supremacy, the system in effect here in South Africa before the adoption of constitutional democracy here. As Speaker of the National Assembly and others repeatedly noted yesterday, the adoption of constitutional democracy, with a fundamental charter of rights, represents in his words a "decisive break from the past."2 2 Speaker of the National Assembly, the Hon. M.V. Sisulu, Access to Justice Conference, July 8, 2011, Session 1.
Your new constitution, like the Massachusetts and the United States constitutions, saw the establishment of an independent judicial branch of government, coequal with the executive and legislative branches of government. Parliament is no longer supreme, and the essential function of judges is no longer to enforce the laws of parliament. To the contrary, as President Mpati noted last evening, South African judges now have extensive powers to review and limit, or in rare cases to prohibit, certain acts of government. In a constitutional democracy, judges are empowered, indeed obligated, to say "no" to lawmakers, ministers, even presidents from time to time, when the needs of the historical moment clash with constitutional guarantees of fundamental rights.
It is precisely for this reason that the accountability of judges takes on the greatest importance: accountability that ensures that judges earn the trust and confidence of the people. The people's elected representatives (the executive and legislative branches) can be voted out of office. Not so judges. We have tenure, subject to mandatory retirement requirements, and can be removed from office only with difficulty. How then do we ensure that there is judicial accountability in our respective constitutional structures How do we ensure that judges maintain the trust and confidence of the people?
That is no easy question to answer. At very least we must ensure that every judge, no matter when appointed or from whatever background, adhere to the highest ethical standards, have and maintain appropriate legal knowledge, and acquire and exercise complex and unique skills in leadership, decision making and administration.3 Continuing, mandatory judicial education (and I would add judicial evaluations) is one essential mechanism by which the judiciary can secure public trust and confidence.4 3 Principles at p. 1 4 Principles at p.
Today South Africa is an influential voice in the global dialogue on human rights. But as your Chief Justice and others so eloquently stated yesterday, much work remains to realize South Africa's vision of substantive justice for all. Judicial education is, I believe, a key to the success of that undertaking. It is particularly important to strengthen judicial education in a country such as the United States, which is so diverse and multicultural. Our judges come from a vast array of different backgrounds, with different legal trainings, very different experiences as lawyers and speaking different languages. The success that we have had building a cohesive, highly regarded (if I may say so) judiciary in Massachusetts, recognized as one of the best in the United States, owes a great deal to our on-going, robust judicial education programs. As you undergo a massive transformation of your own judiciary to more properly reflect the people of South Africa, I have to conclude that mandatory, continuing judicial education is as important here.
Next, judicial education BY WHOM There is an easy, and unassailable, answer to that question. As Chief Justice Arthur Chaskalson noted yesterday, an independent judicial branch demands that judicial education be the responsibility of the judiciary, not some other branch of government. To earn the public's trust and confidence in the judicial branch, judges "must continuously enrich their knowledge and acquire and maintain [essential] skills."5 The responsibility for judicial education therefore properly rests in th?
5 Principles at p.1. See also Principle I at p. 5.
judicial branch under the leadership of the Chief Justice of the highest court.6 No other branch is equipped to do so. The key here is judicial leadership.
6 Principles Standard 1.1, p.
WHO should receive judicial education My answer may surprise you?
Strengthening judicial accountability was one of my priorities as Chief Justice. I early on concluded that I had to break the stereotype that judicial education was important only for junior judges, or judges who were not performing well for some reason. Because judicial education was key to that goal, mandatory education began at the top, and during my tenure was strengthened for all 400-plus Massachusetts judges, trial and appellate. At my court, the Supreme Judicial Court - comprised of seven judges - we each underwent a writing course taught (in our case) by an outside expert on judicial opinion writing. (Yes, there are such experts). Writing an opinion is not the same as writing an academic article or heads of argument. We concluded that every judge, trial or appellate, no matter when appointed to the bench or what their prior experience, should have some training in writing judicial opinions. We went further. I implemented a system whereby a selection of released judgments by each Justice of my Court was reviewed - anonymously - by a selection of judges on our intermediate Appeals Court and by a selection of our trial judges. They, after all, are the judges who have to follow the law as explicated in our opinions. I learned a great deal from those anonymous reviews of my own writing prowess. The reviews, of course, did not comment on the substance of the judgments, but addressed issues of clarity, brevity, and the like.
Leadership of the Chief Justice is important. But for our trial judges, I have learned that it is Heads of Court that can play the central role here.7 Our Heads of Court work with their own judicial colleagues, to develop on-going, career-long, judicial education programs specific to the needs of each court. Each of our court departments (as we call them) has a committee of judges selected by the Head of Court to develop annual or semi-annual programs of judicial education for the judges of that department. In selecting judges to serve on the respective educational committees, attention is paid of course to the diversity (seniority, race, gender etc.) of the judges selected. And these judge-comprised educational committees of each judicial department set the agenda, the curriculum if you will, for each educational session of that court. The educational components are both substantive and administrative.
7 In our system, Judge Presidents are referred to as Chief Justices, i.e. there are Chief Justices of every trial court department.
on crime laboratory forensics. Chaired by a judge, the session included remarks by the head of the State Police forensic and technology center, as well as from three High Court judges. Yes, outsiders, in circumstances that have no effect on individual cases, address judges. Another session was on recent developments in the law, this time taught by two High Court judges, who carefully reviewed and summarized important recent decisions from the Massachusetts appellate courts and the United States Supreme Court. Trial judges have enormous demands on their time, and we recognize that not all trial judges are able to keep abreast every day with every new opinion issued by our appellate courts. This is so for the most senior judges, as well as for the most junior.
Racial, cultural, gender and economic stereotyping is a frequent subject at our judicial education conferences. The judiciary should make every possible effort to combat charges of racism and sexism, and we have found that educational sessions on these topics to be enormously helpful. Last year Massachusetts courts were required to provide interpreters in more than one hundred different languages. No matter what a judge's background, our judges have told me how helpful they have found these sessions to be.
And today, with the focus on improving access to justice, almost every educational session for each trial court department includes sessions on criminal and civil case management, and best practices for implementing those strategies. The "arrogance" of judges We have sessions on judicial demeanor, on how to handle stress, on time management, on techniques to keep current with judgments, and on developments in technology or on computer training?
The important point is that these programs are deeply embedded within each trial court department. The educational sessions are proposed by and typically conducted by judges themselves. This is no curriculum developed in some far off office, removed from the day to day experience of trial judges.
Let me pause to comment here on the implications for judicial education in systems that seek to provide access to justice for all people, no matter their economic circumstance. Improving access to justice for all was another priority of my administration. I do not know whether South Africa is faced with the challenge that we have in the United States where in many, many civil cases (over 80 percent in our family courts) one or both litigants appear who cannot afford to pay for a lawyer. (Gideon v. Wainright provided a right to counsel in criminal cases only.) We call these self-represented litigants. Each person in the United States has a constitutional right to appear in court, even without a lawyer. I need hardly describe to this group what a challenge self-represented litigants has been for our trial judges in particular. They do not know the rules of evidence or the pleading rules we all take for granted. We have therefor provided extensive, on-going judicial education on and have promulgated judicial guidelines for civil hearings involving self-represented litigants.
"Freedom and equality of justice are essential to a democracy," said Boston lawyer Reginald Heber Smith in his landmark work on the law and the poor. "[D]enial of justice," he continued, "is the short cut to anarchy." 8 The short cut to anarchy. Those are strong words, indeed. We educate our judges to preside effectively over cases brought by the poorest among us. A judicial proceeding can be, often is, a frightening experience for poor, uneducated litigants. We have educational sessions to train our judges how best to conduct those proceedings.
8 National Legal Aid & Defender Ass'n Collected Quotes Pertaining to Equal Justice, at http://www.nlada.org/News/Equal_Justice_Quotes.
[Judge Erasmus: my computer deleted the section on WHEN - in which I drew a distinction between mandatory training and mentoring of newly-appointed judges and continuing judicial education for established judges. I would be happy to redraft this section if you would like me to.
Last, I have these brief comments on HOW Ongoing, comprehensive judicial expensive is not for the faint of heart, and it is not cost free. In the early days of my tenure, when we were not under such tight budget restraints, we had the luxury of taking trial judges to some modest hotel for two or three days for a judicial education program. Since the fiscal crisis of 2008 in the United States, and continuing as I speak, judicial budgets have been slashed, and I use that term advisedly. To prevent the lay-off of critical judicial staff (our all-important clerks and security personnel and secretaries and librarians etc.) we have had to cut drastically, eliminate really, the funds available for judicial education. But the educational sessions have continued. Why Because all of our judges find them so helpful for their work, and so important for the collegiality and coherence of each trial court department. And because the judges tell us that they benefit greatly from sharing ideas and experiences among each other?
Each Head of Court continues to have an educational committee comprised of judges from his or her court department. The educational sessions are now held in a courthouse or at some place easy to reach in a day (university law departments have provided us with facilities without charge). The judges themselves have paid for morning coffee and muffins, and have brought their own "brown bag" lunches. Those living close to the venue have helped defray the petrol costs of those who drive from further away.
Judicial Performance Evaluations.
[Add here comments on Masschusetts program of judicial performance evaluations, and quote from questions asked in anonymous surveys sent to attorneys and to court staff].
When I was a student leader in South Africa in the 1960's the impediments to establishing a free society founded on the principles of justice and equality seemed insurmountable. But the impediments were surmounted; the principles of justice and equality did prevail. How I have learned that when each one of us refuses to accept what appears to be the inevitable, the consequences can be extraordinary?
Speaking as a judge to judges I believe this: the future of an independent judiciary, the future of South Africa, rests of the shoulders of each of you in this room. May each of you learn to value judicial education and may each of you work to make judicial education in South Africa the shining example to all of us.