Legal Reforms Needed To Ensure Judges Have Subject Matter Expertise

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To become a distinguished professional, one must accumulate work experience, develop relevant skills, obtain advanced qualifications, and nurture ethical practices.
Judges are no different. In fact, for them, these attributes are critical as their decisions impact litigants in a direct way. For this reason, judges must possess subject matter expertise, exercise patience when hearing cases, and have the ability to deliver well-reasoned judgments promptly.
Generally, the decisions of trial judges are rarely overturned even if they lack subject matter expertise. Instead, appellate courts typically focus on legal or factual errors which a judge may have made, without relating them to a lack of knowledge in any particular field.
In marked contrast, decisions handed down by arbitrators can be set aside if they lack the necessary qualifications and expertise.
This discrepancy highlights the need for legal reforms to ensure that judges at all levels have the requisite qualifications, experience and expertise. This would allow for expedited hearings and an improvement in the quality of judgments, which would benefit the public.
In the realm of criminal justice, it is essential that adjudicators have at least five years of experience as prosecutors or criminal practitioners. This experience would help them understand the nuances of investigative and prosecutorial practices.
In my view, serving as a registrar, magistrate or sessions court judge alone is insufficient to grasp the intricacies of criminal practice.
A dentist I know completed his studies in law and passed his Certificate of Legal Practice while continuing his dental practice. That is proof lawyers and judges can secure subject matter expertise on an ongoing basis without disrupting their careers.
Reflecting on my early days as a legal practitioner, I found criminal practice to be relatively straightforward. An affordable fee structure and unsolicited media coverage of several criminal cases I undertook helped boost my litigation portfolio.
In the late 1980s, I defended a lorry driver who was accused of raping a woman at her home in the middle of the night. He denied it, claiming not to know the girl.
In defending my client, I argued that he had been the victim of mistaken identity. His accuser, however, claimed otherwise, telling the court she had a clear view of his face thanks to the light of the moon coming through her room window.
As someone keen in astrology I knew that the moon was not visible that night. I proved this by producing an astrologer’s calendar. Both the prosecution and judge magnanimously accepted the evidence, disregarding the rule against hearsay and applying common sense instead.
In another case, the accused was alleged to have stolen a golden belt, an accusation he denied.
Under cross examination, a goldsmith repeatedly claimed the belt was made from pure gold. When I produced a chemist report that showed otherwise, the goldsmith disputed that melted gold produced by the prosecution in court was from the stolen belt.
That saw the accused acquitted without his defence being called.
Just a few months before my elevation as judicial commissioner, the Federal Court assigned me as counsel for a bus driver in his final appeal against conviction for rape and murder.
The convict denied murdering the victim but told me that during the act of rape his victim’s head had struck the iron bar of the passenger’s seat. He later disposed of her body. If successful in this argument, he would have avoided capital punishment.
On the day of the hearing, the Federal Court generously allowed me to amend the petition of appeal to canvas this new argument although it had not been raised in the High Court or the Court of Appeal.
Following a lengthy hearing, the court stood down to deliberate the matter but eventually dismissed the appeal and maintained the death penalty. This disappointed the media which had gathered after a rumour began to circulate that the sentence might be reduced. My client thanked me for my efforts anyway.
Perhaps it would have been different if he had made out his case in the trial court. In criminal cases a failure to canvas the accused’s version of events at trial may be fatal.
The experience of being allowed the latitude to present my case fully and effectually reinforced the importance of judicial temperament and patience to me.
But that was not to say that I could be pushed around in my time on the bench.
From the time I was a judicial commissioner, I ensured that criminal cases were heard promptly.
To that end, I was firm in not granting adjournments unless they were necessary. In criminal trials or appeals, I would threaten to revoke bail if a defence lawyer were to make an unreasonable request for an adjournment.
Legislation should be drawn up to make it necessary for judges appointed to the bench to have subject matter expertise and the requisite experience, especially as prosecutors or defence lawyers.
Article 5 of the Federal Constitution guarantees life and liberty. Constitutional functionaries are obliged as per their oath of office to ensure that all adjudicators hearing criminal cases have subject matter expertise to fulfil their constitutional mandates.
A clear framework must also be put in place for ongoing learning, skill acquisition and training to enhance their judicial capabilities and temperament.
In my view, these measures would safeguard the integrity of the criminal justice system and ensure procedural fairness for the accused at all levels of criminal proceedings. - FMT
The views expressed are those of the writer and do not necessarily reflect those of MMKtT.

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