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VIRTUAL RESEARCH ASSISTANT PROJECT
Research brief provided:To dissent or not to dissent: that is the question. An examination of the role and propriety of dissenting judgements for the Malawi judiciary.
COUNTRY / Malawi
DATE COMPLETED / 1 September 2014
INTRODUCTION
The question of whether or not to allow dissent judgments in many jurisdictions is as much a theoretical debate as it is a practical quagmire. While many jurisdictions around the world permit their judges to have dissent judgments, others disallow it.[1] In many of the jurisdictions that either allow or disallow it, there is often some clamour to make a switch to the other approach. The judiciary in Malawi also now finds itself at that point where it seeks to evaluate its practice with regard to dissent judgment, in order to decide whether to stick to, or depart from its established practice of unanimous judgements. In a bid to provide some insight into the nuances of the various types of judgment options and implications of any change, this paper seeks to examine dissent judgments; first through a historical tracing of its origins, so as to provide a contextual understanding of dissent judgments and then to examine the purpose of dissent judgments. Next, the pros and cons of a system that allows dissent will be examined, as well as a consideration of other options to a system that permits dissent judgments. Finally, the paper will conclude with a juxtaposition of the various options available to the court, with the best course of action to take.
HISTORY OF DISSENT JUDGMENTS IN THE COMMON LAW
There are only three widely used ways in which multi-judge courts have delivered judicial decisions over nearly a thousand of years of recorded Anglo-American jurisprudence.[2] The first is the seriatim delivery of the judgment of each judge individually and one after another with the grounds for the decision.[3] This practice prevailed in Great Britain for nearly all of its history, from the time of William the Conqueror to present day. It also was common in the American courts (both state and federal) at the founding of the United States of America.[4] The second is delivering an “opinion of the court” as a whole, with no publicly revealed vote or separate opinions issued by individual judges. This practice has been used most prominently, by Chief Judges Lord Mansfield of the King’s Bench in England and John Marshall of the United States Supreme Court and is the current practice of the judiciary in Malawi. Finally, the modern practice which has been made most common in the United States is a hybrid, in which an opinion of a majority of the court is issued, but judges decide individually whether to “write separately”.[5] Many other common law jurisdictions, either adapt one or more of these styles of judgments.
From almost a thousand years ago, decisions of multi-member courts in England were delivered orally by each judge seriatim and without any prior intra-court consultation.[6] Case reports were compiled by “prothonotaries” or scribes, who recorded, to the best of their ability, the proceedings of the court and the orally delivered opinions of the judges. These reports, covering a continuous period from the reigns of King Edward I to Henry VIII (1268 to 1535), were originally published in raw form, and were used by lawyers as source material and precedent.[7] However, lawyers and judges had a difficult time even figuring out what the legal rule from a case was. “Precedent” was virtually unknown, since it implies the existence of a stable line of judgments available to parties and judges.[8] No official court reports were issued until Edward Coke published his cases in 1609.[9] Even after the ingenuity of Coke and his contemporaries in formulating the issuance of official reports of judicial decisions, the practice of each judge delivering his opinion seriatim continued. The long and unbroken tradition of delivering opinions seriatim was changed unilaterally with the ascendancy of William Murray, known as “Lord Mansfield”, to the position of Lord Chief Justice of the King’s Bench in 1756.[10] Mansfield introduced a procedure for generating agreement and consensus among judges and then issuing caucused opinions. The judges met collectively in the secrecy of their chambers, worked out their differences into a compromise decision, and then wrote what was to be delivered as an anonymous and unanimous “opinion of the court”.[11] Mansfield made this dramatic change in an attempt to bring clarity and order to the law; so as to bring English commercial law in line with prevailing practices in international trade in other countries.[12] Before this intervention, due to the plethora of courts with overlapping jurisdiction, litigants had the options to go to any forum that would most be favourable to their position. As such, the law was very varied with no clear line of precedence.[13] Mansfield’s actions thus brought decorum, sanity and certainty to the practice and judgments of the courts and by effect greatly brought progress to the law on commercial issues. In fact Blackstone, described the achievement of Lord Mansfield in glowing terms when he said; “the learning relating to . . . insurance hath of late years been greatly improved by a series of judicial decisions, which have now established the law.”[14]
However, the change from seriatim opinions to opinions of the court was short-lived. On the retirement of Mansfield, Lord Kenyon put an end to the practice, and the judges returned to the practice of seriatim opinions. This tradition preserved until very recently in all multimember English courts.[15]
England’s long tradition of seriatim opinions crossed over to the budding United States of America along with much of the common law during the formative stages of American judicial development. Early American jurists learned the law by studying the English common law, and therefore adopted many of its practices and institutions.[16] In addition, many of the state courts were established before Mansfield’s innovation, so in every state court and in the early years of the Supreme Court, American judges continued the practice of seriatim opinions.[17] But many young American courts and judges became exposed to Lord Mansfield’s transformations in England and begun to emulate.[18] In several states, the practice of Lord Mansfield was adopted as a way to increase the power of the courts vis-à-vis the other branches of government. Jurists in these states saw how Mansfield was able to increase the power of his court at the expense of other forms of power, and were eager to emulate this.[19] One such court was that of Virginia; which was headed by Judge Edmund Pendleton who greatly admired Mansfield and he introduced Mansfield's practice of “making up opinions in secret & delivering them as the Oracles of the court.”[20] This practice was widely criticized by Thomas Jefferson. Due to political pressure, the practice soon ceased and the tradition of seriatim opinions was quickly reinstated. However, there was an on-going battle across the country among lawyers, jurists politician and scholars of political thought, and this conflict persisted for about a decade.[21] While some felt that written judgments further enhanced the undue power of the judiciary,[22] others like John Marshall felt that it was necessary to build the nations jurisprudence. Jefferson felt that seriatim judgments allowed for democracy in the judiciary with each judge stating the reasoning for his position. Importantly also, he stated that seriatim judgment better enriched the law because according to him “it sometimes happened too that when there were three opinions against one, the reasoning of the one was so much the most cogent as to become afterwards the law of the land.”[23] John Marshall soon became Chief Justice; and his appointment served to give more clout to the Supreme Court, which had until then been a weak arm of government. He convinced his colleagues on the need to present a united front on matters, especially when they had regard to national issues. The reasoning as shown in the case of Talbot v. Seeman,[24] was that, if a complex, politically charged case like Talbot could be resolved with a single opinion, not only would the decision enjoy greater legitimacy, but the identity of the Supreme Court as the nation’s highest tribunal would become manifest and its prestige would be enhanced enormously.[25] Significantly, the success of the court in that decision and the clout it enjoyed subsequently, opened the door for the Court to assert, just two years later, the power of judicial review in Marbury v. Madison[26].[27] The unanimity consensus continued to a great extent even after Marshall left the Court in 1835. Although the number of separate opinions increased slightly after Marshall resigned from the Court, Marshall’s practice of unanimity dominated the Supreme Court for over 100 years.
With the appointment of John Harlan Stone to Chief Justice in 1941, the Court began a trend writing separate opinions in most cases. Stone was the first academic appointed to hold the position of Chief Justice, and this background made him more likely to want to encourage open debate and encourage dissent, with him himself dissenting in a large number of cases.[28] Stone stated that “the right of dissent is an important one and has proved to be such in the history of the Supreme Court . . . I do not think it is the appropriate function of a Chief Justice to attempt to dissuade members of the Court from dissenting in individual cases”.[29] In addition to Stone’s standpoint on dissent, the political climate favoured change in many previously established ways. Dissent proved to be a powerful weapon for change.[30] Furthermore, this time in history saw the rise of legal realism as a counter to the traditional use of natural law.[31] Dissent also importantly saw the reach of the court spread to the issues of civil liberties.[32] However, upon the retirement of Stone, several attempts were made to bring the courts back to a position of conformity and unanimity, but they failed. This was partly because judges were now aware that dissent enabled them to expand their role and power over policy issues and then the prevailing economic and socio-political mood was one that now favoured individual expression and a pervading sense of the need for a legal revolution.[33] The proclivity for dissent has remained and blossomed in the recent past in America and in many other common law jurisdictions. Dissents, which were once reserved for only the most profound differences of opinion, are now commonplace.[34] In Malawi, while there has been no express prohibition of dissent judgments, by judicial practice, there has been a stronger pull towards unanimity, collegiality and consent.
PURPOSE OF DISSENT JUDGMENTS
The primary function of dissent is that it helps in the shaping of the perception of the court as an arm of government to the public which it exists to serve.[35] The acceptance of dissent in the judiciary serves to present the judiciary as an inclusive arm of government that is held up to the same standards of efficiency and probity as the other arms of government. This is because if the judiciary is expected to uphold the tenets of democracy, it must be seen to be a repository of those democratic tenets and a practitioner of these tenets. For the judiciary, the most basic and intrinsic form of expressing democracy is in the permission of dissent. This is because dissent has within in it; the concept of freedom of speech along with the concept of allowing the majority rule, while still permitting the minority to air out their position. Dissent enables judges to fulfil their role without the pressure of having to submit themselves to a process designed to produce an artificial unanimity. In short, the permission of dissent ensures judicial independence from colleagues.[36] Hence, with the allowance of dissent the judiciary operates and, perhaps more importantly, is seen to operate, in harmony with the tenets of the political settlement.[37]
Secondly, the allowance of dissent can make a court’s work to be qualitatively improved through the acknowledgment and more proactively, management of dissension amongst its members. The ability to accept and incorporate well-reasoned dissent can serve to allow a properly enriched judicial arm. It has been said that the presence of dissenting opinions speaks to the integrity of the judicial process and the independence with which the judiciary is allowed to discharge its functions.[38] As such, dissent not only serves to ‘test’ the cohesiveness of the judicial unit but also helps it quickly come to terms with any ‘cracks and subsequently arrive at a point where the judiciary’s legal outlook is well defined and rounded, having taken into consideration all relevant views.
Also, dissent can exercise an influence upon the law itself and drive it in new directions, which may enable the law to keep in step with changing community needs and standards.[39] In this respect, an ability to dissent enables the law to admit new ideas and adapt old doctrines, while exposing them to scrutiny and consideration both inside and outside the court. Thus, dissent facilitates progression and change, and does so in a more open and less abrupt way than might occur in the absence of any ability to deliver such contrary opinions.[40] In essence, the progress in the judiciary and the law is more likely as a result of the acceptance of dissent judgement. However this progress is not only found in the content of the dissent but also in the sort of enabling environment, dissent judgment creates. With dissent, the issue is more about permitting the individual voicing of opinions of judges, and in the event some of those opinions are in dissent of the main line of thought, or are in fact on the same line off thought, but not just through the same reasoning, the voicing of such opinion is permitted.