Blind Justice: The principle of judicial impartiality is crucial to the survival of an appointed rather than an elected judiciary. The slightest suggestion of class, racial or gender bias in judges' sentencing and the public's tolerance of an appointed judiciary will be severely tested.
JUDGES CANNOT AFFORD to get it wrong. Their speech is
privileged and their judgements have the power to deprive citizens of
everything they hold dear: reputation, wealth, and liberty. They also possess
the power to inflict dreadful harm on persons and communities entirely innocent
of any wrong-doing. Whether it be in passing sentence, or granting bail, judges
have to get it right.
There are two ways of maximising the chances that judges’ decisions
will be right more often that they are wrong. The first is to select them
purely on the basis of their professionalism. To fill the judicial bench
exclusively from among the best, brightest and wisest our legal profession has to offer.
This is our way.
The other way of limiting bad judicial decisions is to hold
judges accountable for their mistakes. To require them to submit the record to
their own judgements to the judgement of their fellow citizens at regular,
local, elections.
This is the American way.
Judicial election, like any political institution, has its
virtues and its defects. A judge required to submit his decisions to the
adjudication of the ballot box must feel under enormous pressure to accurately
reflect the ideals – and prejudices – of his local community.
And if those ideals and prejudices are profoundly and
aggressively racist? The court records of the parishes and counties of
America’s Deep South contain countless examples of black citizens receiving the
most outrageous injustice from the hands of elected judges. These were educated
men, qualified lawyers, who must have known that their judgements traduced
every legal principle they had sworn to uphold. But, they also knew that if
they attempted to uphold the rights of black defendants, then their jobs (and
quite possibly their lives) would be forfeit.
The other problem with electing judges lies in the potential
of local and national power elites to exert undue influence over the electoral
process. In today’s America even judicial elections can turn extremely nasty. A
forthright and honest judge whose decisions have disadvantaged or embarrassed a
local business owner, or (God forbid!) a major US corporation, may find herself
up against a well-funded challenger at the next election. Allegations of
corruption may appear in the local press. The county’s District Attorney (also
elected) may seize the opportunity to improve his own chances of re-election by
launching a full-scale investigation.
On the other hand, the parents of Christie Marceau – the
young Auckland woman allegedly murdered by the man a judge, ignoring the
Police’s strong objections, released on bail – might argue that if that judge’s
high social status and generous remuneration had depended on the local community
retaining confidence in her judicial decisions, then she might have thought
twice about allowing Christie’s alleged assailant to continue living among
them.
This is, of course, what jurists fear most about the
institution of judicial election. That in deference to the vagaries of public
opinion, judges will be willing to set aside time-honoured legal
protections – like the accused’s right
to the presumption of innocence. They fear that a mere accusation, untested in
a court of law, may see an innocent person incarcerated for months – maybe
years. If the judiciary is to deliver anything remotely approaching impartial
justice, it must be independent.
Judges must not be placed in the position of having to look over their
shoulders, tune into talk-back radio, or commission an opinion poll before
rendering their judgements.
Most New Zealanders would, I think, agree that situations
such as this should be avoided.
But, they would also, I believe, agree that the price our
judges must pay for their independence is the strictest impartiality.
Under no circumstances should any member of the judiciary
indicate by word or gesture, and especially not by the severity (or lenience)
of their sentences, that some members of the community can expect to be treated
better, or worse, than some other members. The old expression “without fear or
favour” must be made manifest in every judicial decision.
It is hard to reconcile that principle with the judicial
commentary of Judge Raoul Neave, in sentencing last week the wealthy merchant
banker, Guy Hallwright, convicted of running over and breaking the legs of
Song-jin Kim.
Sir Thomas Noon Talfound wrote:
Fill the seats of
justice
With good men, not so
absolute in goodness
As to forget what
human frailty is.
“Nor,” he might have added, “to overlook their own.”
This essay was
originally published in The Press of
Tuesday, 4 September 2012.
