Judge Mwila Chitabo says those who administer justice should use their discretion to do the right thing and not a popular thing.
“When I was being sworn in as a judge, the president then Mr Sata said ‘you have never been to prison but we are all potential prisoners’ and that ‘when you are in prison you expect someone [to serve] in your interest and that is you’. So behind that detainee there is a family, behind that detainee there are brothers and sisters, behind that detainee there are maybe school fees to be paid. So in using your discretion, do the right thing and not the popular thing, that is the most important thing to do,” says judge Chitabo.
Judge Chitabo is very right.
Judicious use of judicial discretion increases fairness and can help to promote an equitable legal process by allowing the magistrate or judge to consider individual circumstances in instances when the law is insufficient or silent.
Conversely, because discretion involves situational considerations, its misuse can adversely impact the court’s authority and good reputation, create a feeling of result-oriented decision making and, when abused, leads to gross injustice.
Judicial discretion is necessary to the proper discharge of our court’s constitutional obligations as a separate – and independent – branch of government. Our members of parliament simply cannot write laws to address all situations which find their way into court or that develop as a case makes its way through the legal system. Magistrates and judges are present during proceedings and hear the evidence first hand. From this vantage point a magistrate or judge must have some discretion to apply the law to the facts and procedure of the pending dispute.
The concept of judicial discretion has evolved. In 1680, Lord Camden said: “[t]he discretion of a judge is said to be the law of tyrants; it is always unknown; it is different in different men; it is casual and depends upon constitution, temper, and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly, and passion, to which human nature is liable.”
By the 1800s, when American jurisprudence was being established, Chief Justice John Marshall viewed things differently: “Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge, always for the purpose of giving effect to the will of the legislature; or, in other words, to the will of the law.”
Currently, a common definition of judicial discretion is the act of making a choice in the absence of a fixed rule, i.e. statute, case, regulation, for decision making; the choice between two or more legally valid solutions; a choice not made arbitrarily or capriciously; and, a choice made with regard to what is fair and equitable under the circumstances and the law.
Consistent with justice Marshall’s observations, judicial discretion does not provide licence for a judge to merely act as he or she chooses.
Having a choice means a judge’s exercise of discretion is individual. No two judges will think alike and “reasonable minds can differ.” Discretion is not exercised in a vacuum and a judge’s “choice” may well be impacted by any number of factors including life experience and personal views on legal, social, and moral issues. Though the exercise of discretion involves choosing from among a number of potential “correct” alternatives, that does not mean that a judge’s discretionary ruling may not be found to be in error.