Judicial independence and judicial decisions: Can public opinion really sway a judge’s ‘will’ and ‘intellect’?

Introduction

On May 21, 2019, we, Malawians, went to elect a President and Members to our unicameral Parliament. These were the sixth generation polls in the new Republic. Following the announcement of the results, the opposition, or simply Dr Saulos Chilima of the United Transformation Party (UTM) and Dr Lazarus Chakwera of the Malawi Congress Party (MCP), headed to court. They claimed widespread irregularities in the Presidential Poll. On February 3, 2020, the Constitutional Court of five Judges delivered its judgement which went in favour of the opposition against the incumbent Professor Peter Mutharika and the Malawi Electoral Commission (MEC). While the Opposition world was celebrating this victory, a brother to one of the five Judges, and this brother, Dr Sunduzwayo Madise, is a prominent academician at the School of Law at Chancellor College of the University of Malawi, was interviewed for his side of the story on it all. When the reporter asked whether it could be correct to say public opinion might have influenced the outcome in some way (in favour of the opposition), his response was interesting: “Yeees and Nooo.” Of course, he went on to explain this response. In the judgement itself, the five Judges had taken some time explaining how that their arrival at that decision had nothing whatsoever to do with public opinion but with “the law and the facts”. This discussion is my opinion on this question. Basically, the question is: Do judges really arrive at verdicts without any aid of public opinion (at all)? Or if I should ask it within the context of Malawi following the 2019 Vote: Can the February 3 judgement be said to have carried some taints of public opinion? Well, my opinion is that no matter our attempts to divorce ourselves from public opinion, this phenomenon tends to render itself a constant visitor to the ‘will’ of a judge, and, often, that does pretty pressure the ‘intellect’ of the said judge to cower in. I like law as practised in the United States; so, most of my examples will be from there.

The following sub-questions help me advance my arguments: 
 

(1)  Are Courts reform pacesetters or mere followers?

(2)  What does democracy say about the role of the ordinary citizen in constitutional interpretation?

(3)  What is the possibility that ‘intellect’ can get tainted by ‘will’ in judgement?

(4)  What story does the Constitutional Court proffer to demonstrate they never fell prisoner to the inescapable intruder of public opinion, and why is it a good scholarly insurance to take that with a pinch of salt?

(5)Despite this unbelief and uncertainty the judgement has created in some of us, why is it necessary that citizens must abide by decisions courts make in a democracy?

The Malawi Law Society issues a statement

Let me start by making a confession, namely that a number of events have overtaken my reasoning. For example, contrary to my belief that there was no way the United Transformation Party (UTM) of Dr Saulos Chilima would manage to enter into a marriage with the Malawi Congress Party (MCP) of Dr Lazarus Chakwera, the two have, as I speak, forged that alliance. They call it Tonse Alliance as there are other seven parties besides. All these nine parties have one agenda: to oust the incumbent, Professor Peter Mutharika of the Democratic Progressive Party (DPP), himself in alliance with Atupele Muluzi of the former ruling United Democratic Front (UDF). The torch bearer for the Tonse Alliance is Dr Lazarus Chakwera. The incumbent is heading the DPP-UDF Alliance. However, the two camps are neck and neck. And issue-based politics unknown in Malawi, the political fighting between the two alliances has now turned a pitched battle, anything to hand is as good a sledgehammer.

Only a few days ago, the incumbent went awry, ‘revealing’ the source of the acrimony between him and former Head of State, Dr Joyce Banda who is part of the Tonse Alliance headed by Dr Chakwera. His language was unpalatable. The incumbent was retaliating after Dr Joyce Banda had told a campaign rally that the incumbent has a habit of having one too many.

At one campaign rally, the incumbent is also said to have claimed that the Judges had an ulterior motive to see him go. This stand forced the Malawi Law Society (MLS) to issue a statement, urging the incumbent to calm down.

Through this statement entitled “On statement concerning judicial pronouncements on the elections case”, the MLS has expressed its concern over the sentiments the incumbent made. The MLS calls these sentiments “Mutharika’s ‘disquiet against the judiciary’” and “attacks on the judiciary”. I am not a lawyer, so I’m not sure whether the two are one and the same thing.

The MLS gives the reason for the statement, namely “… the judiciary itself has no access to the political podium and political facilities to respond to the allegations publicly expressed by the State President” as if suggesting that if the judiciary were provided with similar facilities they would find great sense in responding. I am not sure.

Reaction to the MLS statement in some social media circles seemed to suggest that the organisation was stymieing making of comments over the two judgements―the Constitutional Court judgement and the Malawi Supreme Court of Appeal judgement. But my reading of its contents suggests to me that the MLS was not suggesting curtailing of debate in any way.

I am one of the few who have found the reasoning of these two courts wanting in many aspects. First, I believe that a good judgement tells a good story. Honestly, I have failed to come to terms with that story. Second, I believe that a judgement must carry with it a quality that must remove doubt or uncertainty, thereby creating predictability in the community. Lastly, I expect a good judgement to speak for itself. Again, in my opinion, this element hasn’t stood out in these judgements.

These issues are not the subject of my discussion here. Here I am a citizen exercising his right in participatory democracy, and participation is the cornerstone of democracy since democracy without participation is as good as dead. By participatory democracy I mean “a view about how to collectively share power, whether in government, the economy, or social life” (Menser, 2018, p. 11). Take note of the component ‘government’ which suggests the three arms of the state: the executive, the legislature, and the judiciary, and therefore a call for citizens to make their opinion known on matters that concern them. This is more so when issues at stake involve elections, as “elections provide examples of human rights in practice” (European Union, 2016, p. 11).

Courts: Reform champions or reform followers?

This section sets the tone and direction of my argument, as it distinguishes the two approaches to reform initiated by courts. In this way, courts are viewed either as reform champions (in the form or reform described as elite reform), or as reform followers.

Among notable proponents of the idea that courts or their decisions inform and guide public policy reforms is Dahl (1957). Hoekstra (2003) writes that Dahl considers courts an important component of policy making because they “generate greater acceptance for policies created in other branches” (p. 89). According to Hoekstra, Dahl’s reasoning seems to suggest that decisions courts make are so powerful that they “can cast legitimacy on public policy and can shape public attitudes on even the most controversial issues” (p. 89).

Personally, I do not share or endorse entirely Dahl’s sentiments. For me, courts tend to muddle the waters, often leaving public administrators with a huge task of fighting the implications of judicial decisions, decisions which often trigger an avalanche of unintended consequences. In this way, I am not a fan of judicial activism, that “philosophy of judicial decision making whereby judges allow their personal views about public policy among other factors to guide their decision” (Pathak, 2014, p. 130, citing Black’s Law Dictionary, 2014). Scholars who find fault with judicial activism tend to refer to it as “judicial anarchy, judicial despotism, or judicial over activism” (p. 130).

I personally take unkindly to judicial activism because decisions by judicial activists tend to spark a fire that is left to other practitioners, for example, public administrators, donors, medical doctors, to deal with. A simple example could be where courts make revolutionary reforms which public administrators can fail to implement owing to resources or stage of a country’s democracy or development. In this way, I am an ardent follower of Rosenberg (1991).

According to Hoekstra (2003), Rosenberg (1991) casts a lot of skepticism on the ability of courts to champion reforms. Hoekstra thus observes that Rosenberg believes that courts do not bring social change and that their decisions are rarely original, as “any changes that materialized in the wake of court decisions were more likely the result of actions taken by other political leaders, changing market conditions, or trends that predated the Court’s actions” (p. 90). Oftentimes courts come in to add a voice to a debate that was already started elsewhere, for example, in parliament or by the civil society. Yackle (2007) concurs with Rosenberg, arguing that, many times, statutes that courts invalidate are those the people already consider outdated. In this way, argues Yackle, “the justices are not actually at odds with legislators currently in office” (p. 24). This suggests that courts invalidate pieces of legislation that were already considered a nuisance by the population. In this way, what those courts do is nothing original as they simply follow public opinion.

This thinking augurs with a stand that decisions of courts are often driven by underlying currents, most notably, explosive protests or pro-tolerance regimes. This is the line of reasoning that informs this discussion. This reasoning supports my position that public opinion has a greater say on decision courts make on various issues in a democracy. For example, courts will make bold decisions when they scan that the environment around is safe, tolerable, more often when the executive has already been pinioned by others―the media, civil society organisations and the legislature.

The role of citizens in constitutional interpretation

In 2000, the Supreme Court in the United States (see Bush v Gore [2000]) interrupted the vote count still unfinished (in the 2000 Presidential Election) and gave the presidency to George W Bush. On this, Neubauer and Meinhold (2010) conclude: “for the first time in our nation’s history, the high court actually selected the president” (p. 5). The decision had also prompted Allan Dershowitz to write a book with an almost-accusatory title: Supreme injustice: How the High Court hijacked Election 2000.

In the United States, criticism of judges is as old as that country’s independence itself. It is said that Thomas Jefferson, that American statesman, diplomat, lawyer, architect, philosopher, Founding Father, and Third President of the US, had no kind words for some judges. Anthony Lewis in the preface to Kozlowski (2003) writes that Jefferson, that darling of the press, had once described judges there as “sappers and miners”. This man, Jefferson, is famed for declaring that if he were asked to choose between a government without newspapers and newspapers without a government, he would never hesitate a moment to prefer the latter. But here he was, describing judges as “sappers and miners”, literally meaning people who were digging saps or trenches in which they laid landmines with which to destroy walls of fortifications. By describing them as “sappers and miners”, writes Lewis, Jefferson was suggesting that judges worked to undermine the US constitutional system.

Lewis also says of Franklin Roosevelt in the 1930s as a man who did not take kindly to the exploits of judges during his reign. Those supporting him had described the judges at the time as “these nine old men”, all because they had held some of his New Deal legislation unconstitutional. According to Lewis, the situation is even worse today (p. ix). Among the many examples he cites is the denunciation of the judges by Robert Bork, a former law professor, judge, and failed Supreme Court nominee. Lewis writes that Judge Bork had described American courts enforcing liberal relativism as “leading the parade to Gomorrah” (p. ix) for their impracticality.

The United States being the land of freedom, one would expect no one to question decisions of judges or to write books with titles that suggest a direct attack on a decision of a country’s highest court―the US Supreme Court―one often regarded as the most powerful court in the world (Vanberg, 2005, p. 172).

Is it a crime to subject decisions of courts to scrutiny? As the US demonstrates, not at all. This is because popular constitutionalism today stresses the power of scrutiny of court decisions that have constitutional implications. Simply put, the united and general argument in popular constitutionalism today is that “constitutional discourse ought not to be the exclusive province of judges and lawyers” (Persily, 2008, p. 4). It therefore falls on you and I to, within the rut of law, exercise this important duty, one that involves our giving our opinions over matters that concern our nation and lives therein. Thus, the various commentators other than members of the courts themselves form an important component of our judicial system as a component of participatory democracy and Open Government.

Analysis of court decisions is also a healthy exercise in that it enhances the spirit of free speech and engaging scholarship. This is important not only as a means to sharpen the quality of engagement in jurisprudence in the country, but also as a device with which to entrench free speech in the course of understanding judicial decisions. Through such an engagement, the people can appreciate the judicial legitimacy of our justice delivery system. I am saying this because “judicial legitimacy, is thought to derive from a healthy separation of judges from the public, a separation that allows judicial deliberation to be perceived as principled, neutral, and guided by procedure” (Staton, 2010, p. 6, citing Gibson, Caldeira, & Baird, 1998; Hibbing & Theiss-Morse, 1995; Scheb & Lyons, 2000). And how could anyone measure this if an opportunity to analyse court decisions is stifled by wild and unscholarly emotions?

Besides, history of election disputes teaches us that, as far as cases involving politics are concerned, citizens must be on their guard if democracy is to function as well as it should. Judges as people do have interests. For the reason, we are entreated to turn over decisions to ascertain whether there wasn’t any exogenous factor or motive behind it. This is safe, as even the Magna Carta itself, that mother Bill of Rights King John signed near Windsor Castle in 1215, had not been prepared in all good faith. According to Gabriel (2014), “the Magna Carta was a legislative attempt by the barons to keep from paying more taxes, and to gain more power over the throne” (p. 13).

In South Africa, Bram Fischer, the lawyer leading the team (that included ex-First World war fighter pilot and Communist Party veteran Vernon Berrangé, George Bizos, Joel Joffe, and Arthur Chaskalson) defending the conspirators during the Rivonia Trial (1963-1964), was himself an interested party. Once Mandela’s lecturer, Fischer had Marxist leanings. In fact, Lodge (2006) observes that “Fischer’s decision to lead the defence was courageous: as a leading figure in the Communist Party he had himself been a frequent visitor to Rivonia through the course of 1962 and had met on these occasions several of the people whom the prosecution were to name as state witnesses” (p. 110). Soon, Fischer was to play a hand in the escape to Tanzania of one of the conspirators, Bob Hepple, a young lawyer who had fooled the apartheid court that he was turning a state witness only to slip through to Dar es Salaam with Fischer’s help.

Sometimes office and the human component therein tend to fight. Elbridge Gerry had been among the Founders of the United States. In fact, he himself had signed the Declaration of Independence and had attended the Constitutional Convention of 1787, “and yet who was willing to manipulate the drawing of legislative districts to achieve a partisan advantage” (Foley, 2016, p. 10). As a result of this behaviour political science has a term “gerrymandering”, a concept that refers to deliberate redrawing of maps to ensure those who would give you the vote form part of your constituency. The European Union (2016) simply defines it as “the opportune changing of electoral boundaries in bad faith” (p. 19).

To illustrate the concept of gerrymandering, here is Brown (2000):

In July 1998, President Muluzi unconstitutionally sacked the supposedly independent Electoral Commission and unilaterally appointed new members. Suspicions of bias were fuelled in February 1999, when the new commission announced the creation of 70 new constituencies, of which 42 (or 60%) were in the UDF-dominated South. This caused an uproar and attracted the suspicion of Western bilateral donors, who were financing a large part of the cost of the poll. The commission backed down, creating only 17 new constituencies (nine in the South and eight in the Central Region) (p. 1).

Was the move to create more constituencies in the then ruling United Democratic Front stronghold of the South pro-public interest? No, not at all; it was pure gerrymandering. It took intense criticism and thick public opinion―international pressure―for the Commission at the time to somehow budge.

In simple terms, as far as matters of politics are concerned, we all must be on the lookout. In case you’re wondering―matters of politics? Oh, yes, matters of politics, unless you wish to feign ignorance.

Electoral petitions are described as political cases. In fact, Aywa (2016), a prominent lawyer himself, submits that electoral petitions are “more political than constitutional-legal” (p. 73).

There are a number of reasons why electoral petitions are described as more political than constitutional. We should consider only two. The first is that the process itself―everything that happens in court―resembles politics. This makes it political every inch. Previously, Susan Estrich, a law lecturer at Harvard, had expressed similar sentiments when she characterised common law itself as being a political process (1998, p. 10). Her position on it is that “the common law [itself] is a system for achieving compromise and setting common standards, for deciding who gets what, when, where, and how (the literal definition of politics) and giving legitimacy (the force of law) to those decisions” (p. 10). For her, this is “political to its core” (p. 10). Perhaps this explains her choice of title for her book: Getting away with murder: How politics is destroying the criminal justice system.

The second reason that justifies why a court process should be perceived as a political process pertains to implications of judgements, namely that consequences of such pronouncements tend to be far-reaching. This is because they set the tone in policy shift or even call for robust reforms in a nation, not as reform originators, of course. With so much at stake, it should be natural that our interest should be aroused and our voices on the same heard.

Back on reasons why citizens must analyse court decisions and express their opinion on the same: citizens ought to analyse court decisions to play the civilian guarding of the constitution. This is necessary because the reach of the powers of constitutional courts in democracies today have grown with the judiciary assuming the activist role through a concept known as normativity in jurisprudence. In modern constitutional dogma, this concept suggests “the obligatory character of the constitution as a legal regime to control and to restrict state power” (Müβig, 2018, p. 5).

Normativity grants a country’s constitution precedence over all laws. Likewise, it proffers constitutional courts the powers to overreach in tandem with the positivistic, compulsory, and justiciable nature of constitutional law. Such overreach is necessary though it must put us all on guard lest it should turn out selective. In the words of Justice Antonin Scalia as cited in Zelden (2008, p. 214): the “main danger in judicial interpretation of the Constitution—or, for that matter, in judicial interpretation of any law—is that the judges will mistake their own predilections for the law.” We must take heed to such warnings especially when they come from such giants of law as Justice Scalia.

Remember that the purpose of this discussion is to answer whether public opinion has that power to sway a judge's will or intellect in favour of some party in a democracy. My position is that no court decision is arrived at without great regard to public opinion. The next section therefore seeks to learn from the Constitutional Court that annulled the 2019 Presidential Election in the country whether their decision was purely out of law and facts, and nothing beside.

What the Constitutional Court said about public opinion and outcome

The Constitutional Court empaneled to make decision on whether to annul the 2019 Presidential Election or not says in their Judgement that each Judge among them was alive to the magnitude of public opinion and interest the case had generated. The Court however observed that the same had no effect on them, that it hadn’t at all swayed them to favour one party at the expense of the other. The Court insists that it had focused on the law and facts in line with their status, function, and duty as provided for in section 9 of the Constitution of the Republic of Malawi. To buttress its point, the Court cites paragraph 88 of a South African judgement―State v. T. Makwanyane and M. Mchunu―dated June 6, 1995. The Chair in the Makwanyane case, Judge Chaskalson, had this on public opinion:

Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication (Emphasis mine).

In other words, the Court conceded that public opinion does have some relevance to the proceedings; however, the magnitude can be said to be so negligible as to affect an individual Judge’s decision.

Contrary to such professing, I take a position that public opinion is always an important part of any judge’s decision making in any court. I argue that the reason judges seem not to notice it is that this vice is so much part of such judges that they fail to distinguish which is their decision and which the public opinion’s.

From this point on, I argue on two issues. The first is that, at the centre of every political case is public opinion. In other words, an electoral petition, being an example of a political case, leans on the stanchion of public opinion.

The second argument is that the choice of the Makwanyane case to rebut or explain influence of public opinion on the will of a judge does not represent the best form of sherpadizing, and this is for some two reasons. First, the Makwanyane case is about the abolition of the death penalty; one must never compare the sentiments in a case on, not murder, but constitutionality of the death penalty with that on a Presidential Election. Besides, even if one would indicate satisfaction and therefore find no problem with choice of Makwanyane to parry effect of public opinion on the emotional part of a judge, public opinion has been at the centre of courts’ decisions on the cruelty of the death penalty in the United States.

The second reason why choice of the Makwanyane case fails to touch my entrails lies in that this Judge, Arthur Chaskalson (the presiding judge at the case as President of the South Africa’s new Constitutional Court from June 1994), was himself a firm believer of the power of public opinion. I believe that Chaskalson was explaining public opinion in relation to the case at hand, one which was not a red-hot political property or case. Public opinion on a case on determination of whether the death penalty is constitutional can’t compare with that in a case that seeks annulment of a whole Presidential Election, especially in the context that many external observers had endorsed it as free and fair. It is rare for a people to flock to the street to protest for or against in a determination on the death penalty. This is unlike in pure political cases where emotions run high and wild.

In my opinion, the Makwanyane case or even Judge Chaskalson (1931-2012) was not the most informing or authoritative source of authority on public opinion. I will show this in the sections coming by looking at history of Chaskalson as a lawyer during the Rivonia Trial, a trial that took place between 1963 and 1964 when 12 members of the African National Congress were accused under the 1962 Sabotage Act. The twelve were charged with sabotage and attempting to violently overthrow the South African Apartheid regime. Two of the 12―Arthur Goldreich and Harold Wolpe had escaped before the trial had started.

Before I trace the great Chaskalson, a little discussion on what jurisprudence says about how public opinion influences decision in a judge should be in order. Thus, the following section discusses how judges make decision and how public opinion can sometimes interfere with this process.

Public opinion and judgement and the role of ‘intellect’ and ‘will’

Judicial independence

The concepts of ‘intellect’ and ‘will’ hover over the principle of judicial independence as a component of separation of powers, that is, statuses, functions and duties of the three arms of Government―the executive, the legislature, and the judiciary (see sections 7, 8, and 9 of the Constitution of the Republic of Malawi). Understanding of the concept of judicial independence in relation to two concepts of ‘will’ and ‘intellect’ characterises the greater part of the meaning of rule of law. This is because these concepts are at the heart of the principles that safeguard against a number of foes, including conflict of interests.

Contrary to common reasoning that judicial independence simply refers to the independence in terms of how others view and approach the courts, the concept, in fact, functions both ways. Simply put, judicial independence means responsibility in the name of public interest by all sides. Thus, as well as acting as a barrier against forces that can purloin freedom of conscience of judges, judicial independence acts as a bulwark against forces in judges, those negative forces that can work against the people or public interest. This is why judicial independence is best perceived as representing an instrument for judges as well as the executive, the legislature, and the people themselves. This explains why judicial independence is often considered an amalgam of three elements: substantive independence, structural independence, and personal independence.

According to Seibert-Fohr (2006), substantive independence “requires that the judge in her or his decision-making process is only bound by law, not by any determination or other means of influence by other parties” (p. 270). In other words, public opinion, instructions from other parties should form no part of a judge’s decision-making process. The judges therefore enjoy independence from the executive, from the legislature, and even within the judiciary. It is important to note that judicial independence does not relieve the judiciary from compliance with the law (p. 271). It should also be pointed out that, although the legislature may not enact case-specific bills as though they are assuming interpretation of law (p. 271), kind of bill of attainder or bill of pains and penalties, this “does not mean that members of parliament are prevented from criticising judgements” (p. 272).

On structural independence, Seibert-Fohr (2006) writes that judges are not supposed “to exercise legislative or executive functions simultaneously with judicial functions excluding tasks of court administration” (p. 274). This clearly separates the functions and duties of the judiciary from those of the other arms of government.

Lastly, on personal independence, Seibert-Fohr (2006) explains that judges are protected against external interventions. This is more or less substantive independence though it mostly guarantees such issues as salary of judges, protected tenure of office for judges, among others.

It has been pointed out earlier in this discussion that judicial independence is a two-way process, that is, it does not simply give others obligations towards judges and their decisions, but that judges too have a noble obligation towards others, all in public interest.

The obligations the judges have towards others can be best understood when one considers what happens inside a judge during decision making. This understanding can help this discussion determine the circumstances under which judges can be said to have been influenced by public opinion.

Rule of law and decision making (judgement) and ‘intellect’ and ‘will’

We have explained that judicial independence generally assumes that judges ought to be given all the freedom for them to perform their duties without any outside influence, will or pressure. This perception, though correct, does not present the whole picture as it underplays the role of internal independence. To help us understand and appreciate the role of internal independence in decision making in judges, a discussion on intellect and will is necessary.

Philosophically, the internal life of a judge is believed to comprise two important components―intellect and will. Intellect is sometimes referred to as the seat of understanding or judgement, while will is sometimes referred to as the seat of passions, emotions or bad will. Thus, intellect can also be referred to as good will (Hambuger, 2008).

It is the intellect that gives the judge understanding. It is the intellect therefore where judgement is made. The will or the emotion part simply follows the intellect. If the opposite happens, judgement is purloined or is said to have been influenced by exogenous forces. One can understand it in this way: the will or passions or emotions listen more to the corrupt external gratification whereas the intellect links with the Supreme Being. When judges are addressed in names accorded to gods, it is all thanks to the intellect that subsists from GOD. When a judge submits to will, rather than intellect, he or she departs from the will of GOD, the Supreme Being.

Since public opinion is an external force, it can be said to tamper with judgement when it influences the will so that judgement is made not from the intellect but from that will. In that way, the intellect is forced to submit to the will. However, when a judge puts intellect above will so that will merely follows and bows down to intellect, that judgement can be said to have sprung from the authority of laws and justice. By extension, such a judge can be said to have assumed the character of GOD, reigning or judging in mercy and justice in accord to the law of the land.

When a judge takes the oath of office, he or she submits to bind himself or herself to the intellect―to administer judgement from the seat of intellect rather than will, to always subject will to the virtues of the intellect.

Public opinion feeds the will which in turn can influence or mislead the intellect. However, a judge bound by the oath of office can decide to stick to the intellect even in the presence of threats, dangers, corruption and malice of the will. A wonderful example of such a judge is Judge Jagmohanlal Sinha in the Indira Gandhi v. Raj Narain case.

According to Bhushan (2017), Indira Gandhi v. Raj Narain was a landmark case, a watershed moment in the constitutional, legal and political history of India because, among others, “it was the first time in independent India’s history that a Prime Minister’s election was set aside” (p. 9).

On December 27, 1970, the India's President dissolved the Lok Sabha, India’s lower house of parliament. He had done this at the advice of the Prime Minister, Mrs Gandhi. The President therefore called for elections in early March the following year, 1971. The normal elections had been scheduled to take place in 1972, but Mrs Gandhi might have wanted to consolidate her position as Prime Minister, and therefore 1971 would be best for her.

Within a few months, the opposition formed an alliance whose leader was Raj Narain. Raj Narain himself was to fight Mrs Gandhi (for membership to the Lok Sabha) right in her constituency, Rae Bareli. As a lower house of parliament, membership to the Lok Sahba or the House of the People is through direct election. The leader of a party which secures an absolute majority is the one who becomes Prime Minister.

In the elections, Mrs Gandhi, the incumbent Prime Minister, comprehensively defeated the alliance. In her constituency, she also trounced Narain himself, the leader of that opposition alliance. According to Bhushan (2017, p. 21), Mrs Gandhi polled 1,83,309 votes while Raj Narain got only 71,499 votes, and this despite the fact that the latter had already started celebrating in the streets, congratulating the people for choosing him. When in April that year Narain went to court, very few gave him the chance―perhaps the margin was an impossible task to overturn.

Absolutely sure the case wouldn’t go anywhere, the Prime Minister even accepted to appear in court in person. For her, this was an occasion to announce her invisibility. Unbeknown to her, the move was embarrass her as she goofed big time on a number of times, failing to give credible responses to some questions.

Come judgement day, June 12, 1975, Judge Sinha was to see things his own way. It was the charge of corruption, one which many had considered merely subsidiary, that Judge Sinha had turned to as the fulcrum of the whole drama. The fact that Mrs Gandhi (in her campaign) had incurred expenditure much above the prescribed limit of Rs 35,000 was what Judge Sinha’s intellect had found offensive. He nullified the election of Mrs Gandhi, effectively dismissing her from office though it didn’t happen in reality―Mrs Gandhi was to find her own way to remain in office.

A few months later, following a state of emergency, the Supreme Court came to her rescue, endorsing bizarre pieces of legislation that exonerated Mrs Gandhi retrospectively (emphasis mine). It should be pointed out that though the Supreme Court had done this in a manner unbecoming of such a court, its action had averted a serious constitutional crisis that was promising to wreck India’s democracy. Like the Bush v. Gore (2000), the Supreme Court of India had come in to rescue India for the sake of the people of India. The will had taken the upper hand though it should have been the intellect doing so.

Unlike the approach taken by the Supreme Court, Judge Sinha had disregarded public opinion by dwelling on the intellect. For him even a small margin above the prescribed limit of Rs 35,000 was an issue. Even date, as simple as it sounds, had become an important consideration to condemn Mrs Gandhi, after all she was a Prime Minister―a Prime Minister of India had to live a life above reproach.

An important question here is whether judges should always stick to intellect even where that approach promises to set democracy itself into a state of madness and chaos. To the Supreme Court of India it served no purpose letting things spiral out of control simply because a judge has to stick to law or the intellect. In November 1975, therefore, the Supreme Court Justices there overruled Judge Sinha’s decision. The same approach was taken by the US Supreme Court following disagreements over the 2000 Presidential poll. Bizarre as these moves sound, supreme courts as the ultimate authority have the powers to help bring sanity back in a society when rigid application or interpretation of law promises more problems than answers. When the Presidential Election Petition went to the Supreme Court of Malawi, I expected our Justices to do likewise. I am not sure whether we are better off today following the two judgements on the Presidential Election Petition. And honestly speaking, I fear for my country. I am not sure how history shall judge the approach we took on all this. I had strongly emphasised the power of talking. As someone who doesn't his right from his left, our mutterings were dismissed with a wave of a hand.

Of course, there were other reasons besides why I had strongly believed the Supreme Court was to overrule the Constitutional Court on this matter. Literature tends to emphasise the need for restraint whenever the evidence isn’t as overwhelming, and I felt the evidence wasn’t that overwhelming. Vickery, Ennis, Ellena and Kaiser (2018), for example, proffer the following plea:

A decision to annul an election is one that should not be taken lightly. Repeat elections impose unexpected costs on state budgets and candidates; the normal operation of legislatures and governments may be disrupted while a revote is organized; candidates may refuse to participate in the fresh elections, leading to a political crisis; and repeat elections may themselves be subject to irregularities (p. 1).

However, the four authors proffer the way out, arguing, “where an election has been so compromised that the result cannot be said to reflect the will of the voters, annulment will be an appropriate remedy” (p. 1, emphasis mine). But now the question is: How do we tell the elections were “so compromised that the result cannot be said to reflect the will of the voters”?

I personally felt the evidence before us couldn’t necessitate annulment; the Supreme Court, however, had their own understanding on this.

For me, the bar the Constitutional Court was looking for as far as criteria for a genuine election was concerned can never be attained anywhere in this life. Of course, Article 25(b) of the International Covenant on Civil and Political Rights adopted December 16, 1966 but entered into force on March 23, 1976, provides that every citizen shall have the right and opportunity to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors. This is a repeat, verbatim, of Article 21(3) of the 1948 UN Universal Declaration of Human Rights. Despite all this, the reality on the ground has always been different; even America can never claim this ‘utopia’.

Commenting on America’s nature of election as far as issues of fraud are concerned, Fund (2004), urges fellow American’s to “acknowledge that the United States has a haphazard, fraud-prone election system befitting an emerging Third World country rather than the world’s leading democracy” (p. 1). How difficult would it be then to expect perfection in an election in one of the world’s poorest countries on earth where the level of democracy is far from resembling anything democracy at all?

Even on the manner of ascendancy to the executive chair in the US, things have never always been smooth. Today some Americans, especially Democrats, believe that Mr Donald Trump was aided to the throne by Russia. The embarrassing Bush v. Al Gore is a reference the world over. Dig into history, the problem is as long as their independence itself. In fact, Hall and Andrea Wang (2008) show that even George Washington himself, won an election in colonial Virginia partly because he had spent lavishly, buying voters alcohol on the election day. The two authors add that, another Founding Father, James Madison, lost an election in Virginia partly because he had refused to buy voters beer (p. 37).

Certainly, we must demand free and fair elections, but raising the bar too high makes it impossible for the vote to happen at all, because almost every election will fall short of that expectation. After all, free and fair election is a process. Miezah (2018), puts it succinctly: “When we talk of free, fair, democratically certified elections, then, we talk of elections conducted in accordance with universally accepted norms and principles—that is, a process which is open, transparent, credible and held in a conducive political and security climate in accordance with the prescriptions of the law” (p. 7) (emphasis mine).

In my opinion, that annulment will make it difficult for us to practise our own dogma or script. Sometimes I ask myself whether the brave precedent we had set on February 3 hasn’t opened the sluices for all elections we conduct to be disputed and the verdict obviously falling for the petitioner. For me, implications of such a precedent would be hard to imagine.

We must remember that “democracy―a government of the people, by the people and for the people―rests on the notion that the basis of government is the free will of the people expressed by way of free and fair elections in which the franchise is universal. And yet, free and fair elections alone do not create constitutional government” (Khembo, 2004, p. 64) (emphasis mine). The moment our courts will begin to raise the bar of election conduct too high, elections will begin to mean nothing, because no elections, not even in America, is perfect. In fact, “elections cannot be perfect because they are run by people” (Oliva, 2011, p. 19).

To recap, Judge Sinha had operated from intellect whereas the Supreme Court of India had considered other issues, a totality of issues, including public opinion.

The question that arises here is whether it is prudence to take public opinion into consideration when making judgement. Well, it depends on the level of danger that is lurking out there. In my opinion, there is no need to stick to intellect when doing so will lead to more problems than answers. What the Supreme Court of India and the Supreme Court of the US did served as a good example of legal pragmatism, call it restraint if you want, but I consider it good restraint when it helps a nation move forward. My country is polarized, partly thanks to the genius of the Constitutional Court.

The next section answers the central question of this argument. To put the issues into their proper perspectives, I shall use the example of the decision by the Constitutional Court in the Presidential Election Petition.

Decision of the Constitutional Court: Influenced by public opinion or not?

The courtroom is a forum for making political statements, and political statements have one aim: to sway public opinion in favour of the one making it. Perhaps this is the reason, Booth and Seligson, two lawyers, writing on eight South American countries courageously opine that “in democracies, public opinion matters” (2009, p. xv). This means in every section or department.

Sometimes, factors that force us to take into account issues of public opinion come in subtle forms. Consider the question of women testimony in criminal cases.

Without us realising it, underlying issues which shape representation of women in society, smear the testimony of a woman with immense doubt. Often, “women’s witness is discredited by a host of means meant to taint it: to contaminate by doubt, stigmatize through association with gender and race, and dishonor through shame, such that not only the testimony but the person herself is smeared” (Gilmore, 2017, p. 3). A component of public opinion, biased public representation of a woman, if you want, plays on our mind and therefore on decisions we make.

As explained before, consideration of public opinion takes even more prominence when it is a hard case. Talking of how Hilda Bernstein managed to get hold of Joel Joffe, a young white lawyer, to represent her husband, in case charges were laid against him (towards the Rivonia Trial), (Meredith, 2010), writes: “The hazards for any lawyer acting on behalf of the Rivonia conspirators were severe, both at a professional and at a social level” (p. 246). This is an example of a hard case, where implications of the judgement are far-reaching as they set the tone for policy shift or call for robust reforms.

The Indira Gandhi v. Raj Narain case, already discussed, is another example of a hard case. As discussed it took exceptional courage for luminary Judge Jagmohanlal Sinha, on June 12, 1975, to nullify the election of Prime Minister of India, Mrs Indira Gandhi. We might not like the tag political cases, but almost all hard cases are “more political than constitutional-legal” (Awya, 2016, p. 73).

Political cases are always a darling of public opinion. In South Africa, after Nelson Mandela was arrested (on August 5, 1962 after he had gone underground for two years), he chose to represent himself with Joe Slovo as legal adviser. Mandela did this for a public opinion reason. He minces no words on this, saying, “I would use my trial as a show-case for the ANC’s moral opposition to racism” (Mandela, 1995, p. 434).


A few weeks later when Mandela appeared in court for initial hearing on Monday, October 15, 1962, he wore a traditional Xhosa leopard skin kaross instead of a suit and tie. Mandela confesses he had done this “to emphasise the symbolism that I was a black African walking into a white man’s court. I was literally carrying on my back the history, culture, and heritage of my people” (p. 444). Thus, Mandela, a lawyer himself, was taking advantage of this case to invoke public opinion.

It happened the same during the Rivonia Trial (1963-1964). According to Broun (2012), when Hilda Bernstein requested Joel Joffe’s legal service for Hilda’s husband, Joffe promised to do the job as well as he could. However, writes Broun, Joffe warned her against putting too much faith in his representation, because “public opinion is so heavily against your husband and the others that in the end this is likely to count heavily” (p. 42). This knowledge might have influenced the Rivonia defence team to employ the same device of public opinion. Boehmer (2008) writes: “The accused and their lawyers (among them Berrangé, Fischer, Joel Joffe, Arthur Chaskalson) were aware that the cornerstone of their defence was to use the courtroom as a stage on which to present their beliefs” (p. 48). If this did not have the intention to sway public opinion, tell me what the intention was.

The Rivonia defence team had believed that the trial would be held in Johannesburg as Rivonia lied in the magisterial area of Johannesburg. However, the State suddenly went Pretoria. In Joffe’s words, “there seemed to us (to the defence team which included Arthur Chaskalson) little doubt that the decision to hold the trial in Pretoria was to ensure that it was held in an atmosphere where public opinion would weigh heavily against the accused” (p. 22). In fact, Joffe writes that they, the defence team, that is, had kept discussing this while driving to Pretoria following that decision.

The leading prosecutor in the Rivonia Trial, Dr Percy Yutar himself, is said to have made use of the media to hype public opinion both for his government and his own advancement (Broun, 2012, p. 116). In the introduction to Lauritz Strydom’s Rivonia unmasked, Dr Yutar writes that no sooner had he delivered his opening address in the Trial than the defence began to accuse him of exaggerating the position and of resorting to dramatics for some ulterior motives (1965, p. 4). He is referring to public opinion.

Even Mandela’s April 20, 1964 speech in court during the Rivonia Trial had the purpose to rally world public opinion for African National Congress’ cause against Apartheid. According to Broun, Joffe himself is reported to have said that, following that speech, “the world had been made aware of the personality, attitudes, and integrity of the accused” (p. 117). Recently, in 2016, Denis Goldberg, one of the Rivonia accused, added weight to this, arguing that “[A]ll our lawyers had an enormous capacity for detailed analysis and commitment to those they were defending. More than that, they all understood the historical significance of the trial” (p. 102). In other words, every member in the defence team of which Arthur Chaskalson was part knew what was at stake in the public mind.

And true to the wishes of the Rivonia defence team, Chaskalson being part thereof, the outcome of the Rivonia Trial had changed world opinion. According to the London Times as cited in Meredith (2010, p 272), in the verdict of world opinion, “the ultimate guilty party is the government in power”. A few years later, Moolla (2013) was to add weight to this, observing, “Rivonia helped to a great extent in the mobilisation of international public opinion and to boost the struggle at home” (p. 49).

Arthur Chaskalson, later to become Chairperson of the South African Constitutional Court in the new democratic South Africa, knew of the role of presentation of a superior image and symbolism in courts. Why he advocated otherwise in the Makwanyane case could perhaps be explained by the fact that the issue in question in this case had no serious political bearing―the Makwanyane case was about the abolition of the death penalty in the new South Africa; people can’t fight because they do not agree on whether to abolish the death penalty or not. Politics is a different field altogether, and there, emotions are always high. But certainly, Judge Chaskalson knew pretty well public opinion does have a say in the proceedings or the defence team for the Rivonia conspirators would not have employed this tactic in the Rivonia Trial. It could not be said he considered the role of public opinion as playing some relevance; he must have believed in public opinion wholly, that the greater part of that case stood on winning public opinion against Apartheid.

Thus, history of Justice Arthur Chaskalson gives important hints on his belief in the power of public opinion as far as political cases are concerned. If we were to measure this belief, it could never be “some relevance”; it would form the hub of the issue itself.

The Presidential petition and the magnitude of public opinion

An important question to ask at this time is whether public opinion was so thick during the proceedings of the 2019 Presidential Election case that it would sway Judges’ discretion. Very difficult to answer, but for a fact, the trial was being conducted in the midst of some of the worst demonstrations the nation has ever witnessed. Besides, unlike most previous protests, these demonstrations were supported by a thick anchor of elite public opinion, for example, the quasi-religious organisation, the Public Affairs Committee, and even the Livingstonia Synod, were very much behind them. Almost all opposition parties were behind them too. Above them all we had the media.

One indicator of the extent to which public opinion will influence outcome of a case is the amount of interest the media puts in a particular story and angle. The reason is that wherever the media are, expect public opinion. What Gabriel (2014) writes on this is instructive, namely that “although journalists pride themselves on the opaque concept of objectivity, they choose sides whether they mean to or not” (p. 118).

All said, we must never deviate from the arguments from the explanation of the Constitutional Court that such thick public opinion had no effect on their reasoning and therefore on the judgement. Despite this, I cherish a feeling that public opinion might have influenced the outcome to a great extent.

Conclusion

Courts do take into account public opinion when making a determination over which side should be favoured in a petition. It is almost impossible to imagine a case in which the court never at all considers public opinion. On this, even the Constitutional Court agrees. However, where I differ with their opinion is the magnitude of that influence. Whereas they would characterise influence of public opinion as negligible, I rate public opinion as an important component as far as political cases are concerned. In my thinking, the magnitude of such influence could even be “the factor”.

Every court knows that a decision that goes against public opinion risks rejection. Thus, “such decisions affect the Court’s legitimacy or may lead to the lack of implementation or outright defiance of its mandates” (Hoekstra, 2003, p. 5). Sometimes courts take public opinion as a safe-guard against powerful executives. It is public opinion that defends the court when the executive refuse to abide by the decision (Vanberg, 2005). Such value would inevitably be at the heart of every court determination. Perhaps this explains why Vanberg, summarising a bouquet of scholarship on public opinion, suggests that “even the US Supreme Court―often regarded as the most powerful court in the world―does not deviate systematically from public opinion” (p. 172). As a matter of fact, Sustein (2015) is forthright on this, observing, “Contrary to appearances, the Court usually pays attention to an actual or emerging moral consensus, certainly with respect to fundamental rights. It follows public opinion, it does not lead it” (p. 21).

In fact, according to Hanley (2008), in 2002, in the Supreme Court’s decision in Atkins v. Virginia, Justice John Paul Stevens is said to have invoked public opinion polls as evidence, to reach the conclusion that a societal consensus existed against executing mentally retarded prisoners (p. 108). He was heavily criticised for this. Despite this criticism, Hanley concludes that “public opinion―reflected in referendums, filtered through legislative acts, or indicated in polls―has helped to guide the court’s determinations on what constitutes ‘cruel and unusual punishment’ for more than thirty years” (p. 108).

And of South Africa―the Makwanyane case, that is, the Constitutional Court there did not produce it out of the blue. The ruling ANC had already taken a stand on this. Fowkes (2016) citing van NieKerk (1969), writes that “the ANC had long supported the abolition of the death penalty by the time the Court decided the case in 1995” (p. 7). Why? Well, “black defendants had historically been strongly disproportionate recipients of the death penalty [there]” (p. 7). In short, the Court followed what was already hailed as the right approach to this issue, nothing original.

 

There could be a few out there who share my skepticism of the level of reasoning in the judgement by the Constitutional Court, but it is important to remember that democracy functions on levers of consensus and tolerance. Accepting court outcome is like accepting election results; the benefits to a nation are always enormous. So, like the great Al Gore, we all should be able to say:

[The] Supreme Court has spoken. Let there be no doubt: While I strongly disagree with the court’s decision, I accept it. I accept the finality of this outcome (…). And tonight, for the sake of our unity of the people and the strength of our democracy, I offer my concession. (…) Other disputes have dragged on for weeks before reaching resolution. And each time, both the victor and the vanquished have accepted the result peacefully and in the spirit of reconciliation.

 So, whether it is the President himself, our job today is to accept the decision of our courts. You might not agree with the reasoning, but the fact that we chose democracy over anarchy means that we must persuade ourselves to abide by that choice. Certainly, this Nation shall overcome.

In the same spirit, let us approach the forth-coming fresh elections with a heart open to accept the outcome. May GOD, the Father of our Lord and Saviour Jesus Christ, bless our beautiful country, Malawi.

I bury my case.
 

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