Justice on hold

man_on_phone1.jpgIn April, a court hearing on the outskirts of Bangkok was held up three times while the presiding judge answered his mobile phone. The judge, who was supposed to be listening to the deposition of a forensic expert, instead talked loudly into the telephone while the witness and advocates waited patiently. No one saw any advantage in antagonizing him by making an issue out of it. An experienced Thai lawyer told about the incident also didn’t seem much surprised. On the contrary, she estimated that in around three out of every ten criminal cases which she conducts judges take calls, albeit more surreptitiously.

Nothing in Thailand’s criminal procedure code expressly prohibits judges from talking on the telephone in court; nor apparently is there anything in their manual. But a well-respected serving judge asked to comment on his serial phone-using counterpart said that judges are presumed to understand, both as a matter of custom and courtesy, that such behavior is inappropriate. This attitude is shared internationally. The Bangalore Principles of Judicial Conduct make clear that in order to maintain decorum a judge shall be “patient, dignified and courteous.” Not that one needs to be a judge to know this; most of us learned these values in primary school.

Quite apart from the simple virtues of politeness, there are at least a few other self-evident reasons that a judge shouldn’t be putting his court on hold to take an outside line.

Perhaps the most obvious is that it interrupts the taking of evidence. Trials proceed smoothly when the judge is paying attention. A distracted judge may give cause for an appeal by the losing party. Some years ago a ruling in the United Kingdom was challenged because the judge seemed to fall asleep, although the appeal was rejected because the mere appearance of sleep was not proof of actual sleep.

Perhaps the judge near Bangkok could claim that the mere appearance of talking on a mobile is not proof of actual talk on a mobile, although that may require a long stretch of the imagination. In any case, the question is unlikely to arise, if for no other reason than that the lawyer for the families of the victims was satisfied that in the end the judge did record the bulk of evidence presented, even if some prompting was required.

Taking a call during hearings also threatens the principle of open court. Trials are held in public so that anyone interested can attend a case and know how a verdict is reached. The verdict alone does not satisfy demands for justice. In open court, the parties to a case and their witnesses are seen and heard by everyone else. But when a phone is answered, who is on the other end? Only the recipient knows. By taking a call, the judge admits an unknown party into the court process. It may be the judge’s spouse; it may be someone seeking to influence the trial by making threats or giving advice. No one else can say for sure. So by answering a phone the judge introduces an element of uncertainty into the proceedings which defies open justice and undermines fair trial. A mobile phone-using judge is a threat both to himself and the judiciary as a whole. At a time that Thailand’s courts are under increased scrutiny, what message is sent to the public by a judge who appears more concerned not to miss a call than to do his job?

“Judicial prestige and authority are at their greatest,” Murray Gleeson, the chief justice of Australia, has said, “when the judiciary is seen by the community, and other branches of government, to conform to the discipline of law which it administers.” Courts function on integrity. Where expectations in them are low, the judiciary is diminished. In extreme conditions, it becomes irrelevant. Criminal procedure in Thailand is not completely broken, as it is in some parts of Asia, but it is not in good shape either. From the time that an ordinary person is nabbed to the entry of a case in court many things are likely to go wrong. Police record statements incorrectly,or make them up and force the accused to admit guilt. Prosecutors act as their postmen,lodging cases without evidence, and with the personnel of entire police stations listed as investigating officers. The courts are the last line of defense against malpractice.

If what goes on outside their walls goes on inside then there can be little cause for hope. But it’s not all bad news. If three out of ten judges in Thailand are on the phone it means that seven others are not. Many maintain strict order and would not countenance the use of a telephone by anyone in the room, let alone themselves. They rebuke defense lawyers and prosecutors who presume from practices in less-disciplined courts that using a mobile now and then is okay. Superior judges also admonish their juniors. Whether phone-using judges are censured or not, these true professionals deserve commendation.

People in Thailand love their mobile phones, and that’s fine, but their penetration into the courts is as insulting as it is dangerous. Let’s be unequivocal: judges must not be on the phone when in trial. This should be obvious, but apparently it needs to be said. Never mind protracted and expensive judicial reforms. If Thailand’s judges would all just switch off their phones then they could boost public confidence, and with it their own stature, in no time and at no expense.



Bangalore Principles of Judicial Conduct: http://www.unodc.org/pdf/corruption/corruption_judicial_res_e.pdf


One response to “Justice on hold

  1. Judge off the hook as mobile goes off
    Michael Pelly | August 08, 2008, The Australian

    WHAT do you do with a judge whose phone goes off in court?

    For Michael Kirby, the answer was simple, as Bill Gummow fumbled around inside his judicial robe during a High Court special leave hearing in Sydney last Friday.

    “I think we should arrest this person,” said Justice Kirby.

    Justice Gummow was wearing a sheepish grin, after first looking around, then realising he was the culprit.

    Under the watch of 30 members of the gallery, most of whom were laughing, the longest-serving member of the court checked the caller, stopped the ringing and then returned the phone to the jacket under his black robe.

    Justice Gummow would have been aware of the sign just outside the lifts on level 19 of the courts building in Queens Square: “Please switch off mobile phones past this point.” And he would know that in Canberra, every visitor has to check in their mobile phone with attendants before they are allowed into a sitting court.

    Had he been in a state court — rather than a court administered by the commonwealth — the smile might not have been on show. Under NSW’s Courts Security Act, there is a maximum fine of $22,000 or 12 months’ jail for using a mobile phone.

    Richard McHugh SC was as surprised as anyone. He had only just started trying to convince the judge that the NSW Court of Appeal should not have ruled against his client, Chinese Media Group, in a defamation case.

    He returned to his address, but 20 seconds later the phone — with its conventional ring tone — again went off.

    “Officer,” Justice Kirby called out.

    With a shake of his head and a smile, Justice Gummow again reached inside his robes.

    “I think I should ask for an extension of time,” said Mr McHugh, in reference to the strict 20-minute limit for such applications.

    Justice Kirby was clearly enjoying himself as Justice Gummow looked down at his phone. “I think in all fairness you should have an extension of time,” said Justice Kirby.

    Presumably, Justice Gummow hit the “off” button, rather than the “silent” button, because his phone did not ring again. Alas, The Australian’s queries as to the identity of the caller — and whether the acting chief justice had returned the call — went unanswered. The extra time did not help Mr McHugh. He was refused leave to appeal.

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