World’s greatest Chief Justices and their historic decisions

Chief Justice Mogoeng Mogoeng

Former South African President Jacob Zuma (right) listens to Chief Justice Mogoeng Mogoeng ahead of his inauguration ceremony in his final term at the Union Buildings in Pretoria on May 24, 2014.

Photo credit: Siphiwe Sibeko | AFP

This week, Kenyans were glued to their television sets and other outlets as the Judicial Service Commission interviewed candidates for the vacant office of the Chief Justice of Kenya. The ongoing interviews lead to many questions as to what is it that makes a good Chief Justice. Opinions are varied on this and justifiably so.

In my view, it is difficult to foretell who would be a good Chief Justice or not at the time of appointment or even during interviews such as the ones currently going on in Kenya. The issue of whether one is a good Chief Justice or not is better assessed retrospectively, that is, after the person leaves office.

I will try in this piece to give a list of my favourite Chief Justices and explain why. These will be persons who occupied the highest judicial office in a country although some may not necessarily hold the title of Chief Justice. Israel for example has the office President of the Supreme Court as the head of the judiciary and effectively the chief justice in the sense in which that is used in most countries.

The first great Chief Justice in my books is John Marshall. He was Chief Justice of the US Court for 34 years from 1801. Almost 200 years after he sat in the court as a judge, John Marshall’s influence is abiding. One of the first cases that students are taught about in the Constitutional Law classes the world over comes from him.

The Case of Marbury vs Madison. In that case, he held that the judiciary had exclusive authority to expound the constitution and established the power of the courts to review the actions of other branches of government as against the constitution. This case asserted the place of the judiciary as a co-equal branch of government in the context of separation of powers.

Still in the US, the other noteworthy Chief Justice was Earl Warren. He was appointed Chief Justice by President Dwight Eisenhower in 1953 and held that office until his retirement in 1969. Although he had not held any judicial office before his appointment as Chief Justice, Earl Warren led the court in a major shift of American constitutional jurisprudence in a liberal direction.

This period witnessed the making of judgments in a case involving desegregation of schools, the right of poor persons to legal representation, equality of representation in electoral districts and striking out laws that prohibited interracial marriages, and another law on criminal libel.

Constitutional revolution

This came to be known as the Liberal constitutional revolution in the direction of liberty for all. In this period, the Supreme Court, later christened the Warren Court, changed the US towards realisation of its claim as a democratic republic. For these reasons, Earl Warren is considered, by consensus of historians, to be one of the most influential Supreme Court judges and political leaders in US history.

Chief Justice Iftikhar Chaudhry was appointed to the Supreme Court of Pakistan in 2005, making him at that time the youngest person ever appointed to that office in Pakistan, which was then under a military junta that had overthrown an elected government. As would be expected, the military junta led by General Pervez Musharraf had no respect for human rights and the rule of law.

Chief Justice Iftikhar Chaudhry’s boldness in managing the courts in Pakistan came as a shock to the military. He summoned military generals and intelligence chiefs to the court to answer on the whereabouts of persons suspected to have been arrested and detained by the military.

As Chief Justice, he distinguished himself as a protector of the ordinary citizen. This led to attempts to intimidate the Chief Justice, who was suspended by General Musharraf, summoned to the army headquarters and ordered to resign. He declined and challenged the suspension by the military in a court of law.

After a while, General Musharraf relented and reinstated the Chief Justice to his office. Chief Justice Chaudhry distinguished himself by providing the evidence that a Chief Justice should not take orders from anyone, even a military general.

Aharon Barak, former president of the Supreme Court of Israel is another distinguished and admirable Chief Justice. Judge Barak stated that his philosophy was that as a judge, he had to make sure that a judge and the courts do not advance the intent of undemocratic legislatures.

By this, he meant that laws that lead to undemocratic results such as depriving citizens of their rights must be struck out by the judge, whatever the popularity of that law in the legislature or even with the citizenry. In one case, an organisation petitioned the court challenging the tactics then in use to interrogate suspects of terrorism.

The government argued that the methods were being employed only as a last resort and in moderate ways when a terrorist attack was imminent. The Supreme Court was not impressed. It said the fact of severity of and Israel’s vulnerability to such attacks could not justify giving a carte blanche to the police. Terrorist attacks must be foiled within the law, the Supreme Court held.

In another case where there was a challenge to the government’s response to counter-terrorism, Aharon Barak said Israel finds itself in the middle of a difficult battle. He then added that even in such circumstances, the military commander must uphold the law. He was insistent that democratic governments must express a difference in the way they fight terrorism and thereby distinguish themselves from the actions and methods of the terrorists. In other words, terror cannot be fought using the same methods.

In Africa, South Africa’s Chief Justice Mogoeng Mogoeng is an example. He was thought to be too close an associate of President Jacob Zuma. However, even with this, it is generally accepted that his commitment to the constitution was not in doubt.

He was very outspoken on public addresses where he championed judicial independence and attempted interference by the executive in judicial functions, including criticisms of the Justice minister for failure to ensure proper funding of the judiciary.

Chief Justice Mogoeng once took on President Zuma after the government allowed then President Omar Bashir of Sudan to leave the country despite a court order for his detention pursuant to a warrant that had been issued seeking President Bashir’s arrest and shipment to the International Criminal Court on charges of war crimes.

Vote of no confidence

He also led the Constitutional Court of South Africa and granted an order to opposition parties to set aside a refusal by the Speaker of the Parliament to permit a vote of no confidence on President Zuma to be conducted by secret ballot. This was meant to ensure voting by the MPs without fear, especially those in the President’s party. After this decision, commentators who had thought he would be pro-executive agreed that Chief Justice Mogoeng had led a transformation akin to that of Earl Warren in the United States.

In short, the persons who become Chief Justices are many but those who are remembered are the ones who used the office to transform their countries. But it also shows that courage is a cardinal ingredient for the office of Chief Justice.