DEC 6 -- “Friends, Romans, countrymen, lend me your ears;

I come to bury Caesar, not to praise him.”

The above are the first two lines of a speech by Mark Antony in the play Julius Caesar (Act III, Scene II) by William Shakespeare – one of the most famous lines in all of Shakespeare’s works.

The second line above was bastardised by the Honourable T F Bathurst, Chief Justice of the Australian state of New South Wales (June 2011 – March 2022) as follows: “I don’t come to bury judges, nor to praise them.”

It appeared in the first line of his paper: “Who judges the judges, and how should they be judged?” presented at the Opening of Law Term Address, Sydney, on January 30, 2019.

The former Chief Justice then went on to the gist of his paper: To whom are judges accountable, for what, and in what ways?

But first: What does accountability mean?

Bathurst wrote:

“At its heart, the concept is simple: it is the obligation to give reasons or an explanation for decisions or conduct. The perception that the judiciary is unaccountable is, I think, grounded in a misconception that accountability must come with a ‘sacrificial’ element: that is, where those reasons or explanations are inadequate, a sanction, penalty, or dismissal must follow.”

Citing Professor Graham Gee, a Professor of Public at the School of Law, University of Sheffield, United Kingdom, Bathurst explained that accountability can be "explanatory", "content" and "probity".

Explanatory accountability is a duty to explain or justify; content accountability is the responsibility to an appellate court for the substance of a decision; and probity accountability includes accounting for the expenditure of money. 

According to Bathurst, judges, both individually and collectively, are subject to accountability in all the above forms.

Judges have explanatory accountability in their obligation to provide open, public justice and reasons explaining their decisions, content accountability in terms of the appellate process and probity accountability in terms of their use of public resources.

Explanatory accountability

Judges must give reasons for their decisions. It is a duty that is not to be taken lightly. 

Giving reasons promotes good decision-making. As a general rule, being obliged to explain a decision in a manner open to scrutiny is more likely to result in a reasonable decision which, in turn, is more likely to be acceptable to those whom it affects.

Judges must publicly accept responsibility for their decisions, and it is not inconsequential to have your work subjected to intense public criticism or indeed, collegiate disapproval from other judges or lawyers.

Content accountability

Most decisions can be subject to the appeal process, whereby decisions are formally reviewed. Bathurst explained as follows:

“Judges take an oath, or make an affirmation, to do right according to law, independently, without fear or favour, affection or ill-will. 

"This applies whether it be favour towards a party, or favour towards a fellow judge, when the correctness of their decision is subject to appeal. 

"The suggestion that they would do otherwise is not an allegation to be made lightly, and is easily refuted by the simple fact that appellate courts do frequently overturn the decisions of inferior courts.”

Judges are therefore subject to what Bathurst called “judgment by peers”. Judges are judged by their peers as to whether they were right in their application of the law to the facts.

Probity accountability

The judiciary must account for the public resources it uses. It must present an annual report on the resources entrusted to it. 

It must include information on the timeliness of cases being resolved as delayed case resolution. It must also include statistics on the number of matters filed in the courts and how many cases remained pending or backlogged at the end of the calendar year.

So, we can agree with Chief Justice Datuk Seri Wan Ahmad Farid Wan Salleh that judges should be judged only on their court decisions and not by their past.

“I believe a judge is to be judged based on his performance in court, based on his grounds of judgment, not any other external factors,” he said in a media interview at the Palace of Justice in conjunction with his first 100 days in office.

But don’t get me wrong, for I write not to praise the Chief Justice.