Thursday, September 21, 2006

Judiciary Ethics 102

The (farcical and pointless, imo) trial of Saddam Hussein is back in the news. The chief judge of the tribunal presiding over his trial has been fired for telling Saddam that he was not a dictator. The WaPo article on the firing contains the following lesson on judicial ethics from a member of Human Rights Watch:

"This is Judicial Ethics 101: You don't remove a judge just because you don't like what he says," said Nehal Bhuta, a lawyer with the international justice program at Human Rights Watch, an observer of the tribunal. "This suggests to me that the government of Nouri al-Maliki doesn't have a basic grasp of the independence of the judiciary."

If Nehal had gone on to Judicial Ethics 102, he might have learned that impartial judges do not commiserate with defendants during the trial, and they do not pronounce judgment on significant findings of fact before the trial is concluded. To tell Saddam that he was not a dictator is to essentially exonerate him of wrongdoing. If he was acting as a legitimate head of state, then what does he stand accused of? Putting down rebellions against the state? How could that have been against the law? As Saddam has already asked, "Where is the crime?"

As I have said before, Saddam could not have broken the law. He was the law. He was guilty of being a dictator, but there is no legal authority over and above the law of a dictator under which he can be accused and tried. When a dictator is overthrown, therefore, the only proper way to treat him is to stand him against a wall and shoot him.

Given that this judge has demonstrated his prejudice towards the defendant in the courtroom, the government is obliged to remove him. If the judiciary is going to be independent, it must also be impartial. If it is not impartial, then it must be checked by the other branches of government.


Steven Brockerman, MS said...

If the judge had instead stated: "You are a filthy dictator for which the only proper sentence is death", I wonder if Nehal Bhuta would also consider that okey dokey--would consider that simply an expression of the "independence of the judiciary"?

His is a clear example of dropping the context by which judicial "independence" is to be defined, namely objectivity.

That's Judicial Epistemology 101--a prerequisite to & foundation for Judicial Ethics 101.

Ardsgaine said...

Absolutely. And really, who could argue that Saddam can expect a fair trial in this context, if "fair" means that he has a snowball's chance in hell of not being executed? Even having the trial makes a mockery of the judicial system. His "crime" was being the dictator of Iraq. There is simply no question about his guilt. If he were the type of person who deserved mercy and could be counted on to live out his life quietly in exile, then that would be an option. He's not. He is a megalomaniac whose hands are soaked in blood. Given his freedom, he would do his best to return to power. The only thing the Iraqis can possibly do with him in the end is stand him against a wall. That makes the whole proceedings a farce. Just shoot him and get it over with!

Steven Brockerman, MS said...

Of course, if this were done in an objective fashion, as you say Saddam would have been shot very shortly after his capture.

There is no doubt that he was a murderous dictator. The facts speak loudly and clearly of that for themselves.

Thus, his is not a crime--not a breaking of law--but an act of tyranny, an establishment of oppressive law. In the name of reason & justice--which supercede the law--his life is then, upon overthrow, automatically forfeit.

That's *reality* 101.

Capture him; execute him; move on.

Steven Brockerman, MS said...

"The only thing the Iraqis can possibly do with him in the end is stand him against a wall. That makes the whole proceedings a farce. Just shoot him and get it over with!"

What you said--precisely.

Evil HR Lady said...

Excellent points. It's not a matter of not liking what he said, it was that his actions were inappropriate. Judges should not be commiserating with defense or prosecutive.