Not So Great Expectations

A Victim Of Her Own Poor Personal Choices? Why are middle-class New Zealanders so eager to visit the sins of struggling working-class parents upon their innocent children? And why are the comfortable so blind to the social consequences of punishing the poor?

MY NEPHEW is a policeman. For the last two years he’s been part of the beefed-up policing effort in South Auckland. He has his share of “better work stories”, but most of the policing he does is “domestic related”.

 

When he told me this, I pictured him stepping between angry men and women. That’s certainly a big part of his job, but what shocked me were his stories about children.

 

“The first thing we do is check to see that the kids are all right. So, it’s: ‘Where’s the fridge?’ No fridge. You’d be amazed how many houses I’ve been in that didn’t have one. So you look for the pantry. Nothing. No food. And there’s five kids in the house.”

 

My nephew isn’t judgemental. He simply tells me: “It’s a totally different world. People’s expectations are completely different. If you haven’t seen it, you just can’t imagine it.”

 

Our failure, as a nation, to respond to the reality of poverty, especially as it affects children, is, overwhelmingly, a failure of imagination. There are hundreds of thousands of New Zealanders who simply cannot conceive how a family could live without a fridge. How a pantry could be empty of food. How children could be left to go hungry.

 

Following an item on TV3’s Campbell Live showing the full lunch-boxes of Year 6 pupils at a Decile Ten primary school and the almost total absence of lunch-boxes (and lunches!) among children of the same age at a Decile One school, the letters columns of the daily press were filled with parental indignation.

 

This wasn’t evidence of child poverty, the letter-writers railed, this was evidence of parental failure and neglect.

 

The people who take this position aren’t heartless and judgemental right-wingers (as some of my hard-line left-wing brethren have been quick to brand them) they are simply working from a different set of expectations.

 

It is probable that they have never experienced a prolonged period without money. It’s equally unlikely that they have ever faced weeks or months without enough food to eat or a place to live. The chances are similarly high that they have never been forced to beg a state servant to provide these things for themselves and their family.

 

If no one you know has ever been penniless, hungry or homeless; if your expectations of an income, a well-stocked refrigerator and a warm and comfortable home have always been met; then it is actually very difficult to attribute the absence of these necessities to anything other than poor personal choices.

 

And if someone allows their children to depart for school hungry and without a full lunch-box simply because they’ve made poor personal choices, then that person is guilty of neglecting – even abusing – his or her children and deserves to be punished severely.

 

This is clearly the thinking behind the present government’s welfare reforms. Poor personal choices are being tackled head-on. Any repeated failure on the part of a welfare beneficiary to meet a very basic set of social and familial expectations is going to be punished – hard.

 

But self-righteous retribution is a poor substitute for empathic imagination. It does, however, allow us to kid ourselves that we’ve answered the biggest question arising out of the poverty debate: How does this happen? Once we’ve decided that poverty is the result of poor personal choices, then the search for evidence can cease. We all know the causes: time to concentrate on the remedies.

 

But we don’t know the causes – not really. We don’t like to think about the expectations that poverty hard-wires into children, or of its effects on the people attempting to raise them. We don’t factor in the consequences of domestic violence on childhood development, or the impact of poor nutrition and the diseases of poverty on the little human-beings growing up in houses without fridges, where the cold and damp weakens immune systems. We don’t grasp the effect on a child’s education of always being hungry, or having to move house every few months. We can’t imagine what it’s like: always being a stranger in the classroom; an outsider in the playground. We don’t think about the sort of person a child like that grows into.

 

Are these really “poor personal choices”? Did these children ask to be born into poverty? And do we ever stop to think what sort of people (with what sort of expectations and addictions) they will grow into? Because children do not remain children forever. As the sapling is bent, so grows the tree.

 

Only a handful of us: schoolteachers, nurses, doctors and, yes, policemen, move freely between the two nations that New Zealand now encompasses. If only our hearts and minds would open as wide as our eyes when we learn what they have seen in the nation of the poor.

 

This essay was originally published in The Press of Tuesday, 25 September 2012.

Tolerating Islam

Meetings Of Minds: In the great trading cities of Baghdad, Damascus and Cairo, Islamic civilisation florished for close to 300 years. How did a culture once synonymous with tolerance and learning become so closely associated with violence and fanaticism?

THERE WAS A TIME when tolerance, compassion and the search for enlightenment were the singular virtues of Islam. When the peoples of Christendom still bent their knees to brutal mounted warriors, and the Papacy was little more than a trophy for the corrupt inheritors of Rome’s decaying grandeur, Islamic civilisation was the wonder of the world.

In the space of barely three centuries the followers of the Prophet Mohammed blended the best of the classical era’s legacy with the strict moral discipline and judicious social organisation of the Islamic faith.

 

In the Muslim Caliphate, which stretched from the Euphrates River to the Rock of Gilbraltar, Muslims, Christians and Jews co-existed in relative harmony. In return for a modest tax, the adherents of non-Islamic faiths were allowed to live in peace. In this tolerant environment scholars and craftsmen were encouraged to extend the boundaries of knowledge and technology. The resulting cultural flowering, subsidised by the immense wealth of the Caliphate’s trading centres, ushered in a golden age. Islamic merchants and traders dominated the exchange of the raw products of Europe and Africa for the finished goods of China and India.

 

Indeed, it might almost be said that the military and economic success of Islamic civilisation was the goad that drove Christendom to embark on its epic voyages of exploration, its exploitation of Africa and the Americas, and the rapid development of the mercantile and industrial expertise which ultimately permitted the peoples of Europe to dominate the planet.

 

Westerners all-too-easily forget that when Christopher Columbus set sail from Palos de la Fonterra on 3 August 1492, the Eurasian landmass was dominated by two vast super-powers: the Ottoman and Chinese empires. The kingdoms and principalities of Christendom were bit-players.

 

The beliefs and institutions we prize most highly: the essential equality and “inalienable rights” of all human-beings; the primacy of reason and the scientific method over religious faith and “primitive” superstition; our democratic system of government, within which, alone, human equality and individual liberty, especially the freedom of expression, can hope to survive; all are the product of the West’s relatively brief (300 years) sojourn as global hegemon.

 

But all around us are signs that the era of Western hegemony is waning. Islam has become the vector of its decline – and we have no one to blame but ourselves.

 

From the First Crusade of 1096-99 to the Sykes-Picot “Agreement” of 1916, Westerners have disposed of the lands of Muslim peoples with breath-taking arrogance. The latter’s singular misfortune to live on top of the world’s most productive oil fields has only whetted the West’s appetite for domination. A resource which could have led to the flowering of a new golden age of Islamic civilisation has been sequestered for the United States and its allies by a vicious congeries of kleptomaniacal kings, sultans, emirs and military strongmen – all watched over by the garrison state of Israel.

 

Are we truly surprised that the West’s history of invasion, occupation and exploitation in Muslim lands has armed the most regressive and murderous interpreters of Mohammed’s message? What chance had moderation in the face of Western imperialism? Who else but the Wahabbists, Salafists and Jihadis were likely to benefit from the depredations of the Western powers?

 

While these extremists batter at the gates of the West: pronouncing fatwas on novelists, murdering artists and, as we have seen over the past fortnight, attacking US embassies and clamouring for the head of the film-maker responsible for the risible Innocence of Muslims; the cultural confidence of the West, its adherence to Enlightenment values, has already given way. Post-imperial guilt has given birth to the pernicious cultural relativism of post-modernism, and transformed the intellectual guardians of the West’s egalitarian and libertarian traditions into militant Islam’s fifth column.

 

Within the space of twenty years, the world will likely witness the ratification of a United Nations’ international convention, sponsored by the United States and its allies, outlawing the defamation and/or scandalising of the world’s faith communities. Once adopted by national legislatures, it will be a crime to write a novel like Salman Rushdie’s The Satanic Verses, or make a film like Martin Scorsese’s The Last Temptation of Christ.

 

Let this paraphrase of W. B. Yeats’ The Second Coming be Freedom of Expression’s epitaph:

 

The best lacked all conviction, while the worst

Were full of passionate intensity.

 

This essay was originally published in The Waikato Times, The Taranaki Daily News, The Timaru Herald, The Otago Daily Times and The Greymouth Star of Friday, 21 September 2012.

What If? - The Christchurch That Might Have Been.

Right Reaction, Wrong Process: Cantabrians protest at the bureaucratic edicts presaging the closure or merger of more than 30 Christchurch schools. Imagine a Christchurch rebuilt according to the deliberations of a participatory and democratic Christchurch City Council. Is it too late?

WHAT IF it had all been handled differently? What if the rebuilding of Christchurch, which began which such inspiring displays of bottom-up initiative, had been encouraged to develop along the same lines? All those magnificent student volunteers; all that neighbour-to-neighbour generosity and care; all that practical support and sustenance from the Farmy Army: what if these had become the Government’s model for recovery?

Imagine a very different sort of government had been in power when the earth under Christchurch began to tremble; a government which was willing to put its faith in grass-roots, participatory and unashamedly local democratic action.

Such a government would have based its response on a single, very radical, principle: that the people living in the houses, streets and neighbourhoods most directly affected by the earthquakes are the people most likely to know, and better than anyone else, what needs to be done. Imagine if all the emergency decision-making infrastructure that government installed had been constructed on this simple premise, and that all the resources needed for neighbourhood, suburb and city relief and recovery had been allocated accordingly.

 

The building blocks of recovery would have been neighbourhood councils, in which all citizens participated and from which a neighbourhood recovery committee was elected. This committee would’ve been responsible for getting help to those who needed it most urgently and for identifying the most seriously damaged dwellings, businesses, schools and other vital infrastructure. Each neighbourhood committee would also have sent a delegate to a larger, suburb-wide, assembly where issues encompassing more than the neighbourhood committees, acting alone, could be expected to deal with would be debated and recommendations formulated.

 

Imagine if such a system had been in place to determine the future number and configuration of Christchurch’s schools. The neighbourhood council and the local primary school would likely have shared very similar (if not identical) catchments, so its physical condition, and the degree of underutilisation of its resources (both before and after the big quakes) would have been well known, and the opinions of local parents well canvassed, right from the start – long before any input was required from Ministry of Education officials. The same would’ve applied to Christchurch’s intermediate and secondary schools, the ultimate fate of which would have been a matter of high priority for the suburban assemblies.

 

It is quite likely that the ultimate shape of Christchurch’s educational institutions – as determined by the city’s neighbourhood councils and suburban assemblies – would have looked remarkably similar to the plan handed down from on high by Education Secretary, Lesley Longstone, last week. The crucial difference, of course, would have been that the pupils, parents and teachers living in the school zones affected would have owned the decisions they had made. The plan, rather than being the product of  bogus “consultations” and bureaucratic fiat, would have emerged from genuine democratic discussion and debate, infused, where necessary, with professional expertise.

 

Where, you may well ask, would the Christchurch City Council have fitted into this ultra-democratic recovery infrastructure? Well, rather than establish an undemocratic and bureaucratically-driven Christchurch Earthquake Recovery Authority, our hypothetical government would have passed legislation which not only established and empowered the neighbourhood councils and suburban assemblies, but also expanded the City Council to accommodate these additional representatives from Christchurch’s stricken suburbs. This considerably expanded City Council would thus have been recognised as the key driver of the city’s recovery. The empowering legislation would also have required the expanded Council to choose one of their number as the city’s “Earthquake Mayor” and to appoint a new “Earthquake CEO”.

 

Our hypothetical government would have resourced the expanded Christchurch City Council with the proceeds of a special Christchurch Recovery Tax – levied on the whole New Zealand population. It would also have offered individual and institutional investors the opportunity to purchase Christchurch Recovery Bonds.

 

With the insurers and reinsurers of Christchurch property, our hypothetical government would have staked out a very strong position. A range of possible measures, including: the temporary nationalisation of the entire insurance industry; the establishment of a state-owned insurance company; the active exploration of new reinsurance options; and even the temporary nationalisation of all civic and private Christchurch dwellings and land-holdings would have been put on the table to convince the big reinsurers that a swift and equitable settlement would be in both their short and long-term interests.

 

Working with the neighbourhood councils and suburban assemblies this government would also have co-ordinated the trades and other training required for a massive, state-funded but locally-directed house-building programme. (Perhaps some of those “empty classrooms” Ms Longstone’s so worried about could’ve been put to new uses?)

 

It is possible to conceive of a world in which the first response of those in authority is not to shut things down and freeze people out.

 

And what human-beings can conceive – they can also create.

 

This essay was originally published in The Press of Tuesday, 18 September 2012

Disappointing - And Then Some!

Four Months Work: The US Constitution was the work of four frenetic months and some of the sharpest minds the world has ever produced. What were the chances that a group of fifty New Zealand university students could do something similar in just two days?

 

DISAPPOINTING – and then some. That was my reaction to the draft constitution cobbled together recently by fifty young New Zealand university students. Brought together in Wellington over the 28-29 August by a think-tank called the McGuinness Institute (which is voluntarily assisting the work of the Government’s little-known Constitutional Advisory Panel) and working under the impressive on-line rubric of “EmpowerNZ”, these twenty-somethings were asked to produce in two days what the USA’s founding fathers had strained to deliver in four months.

A big ask, you might object. Surely, given the time-frame, disappointment was inevitable? Maybe. But these young people were not without some pretty impressive intellectual and technical support. Helping them out was Professor Philip Joseph, a significant contributor to the academic literature on New Zealand’s constitutional arrangements. Also present was the doyenne of Treaty historians, Dame Claudia Orange. Mr Dean Knight was there, too, along with a team of facilitators from the VUW Law School. The students weren’t acting alone.

 

So, what did they give us, these fifty constitutional craftspersons? Sadly, the document that emerged from two days of frenetic work-shopping was, conceptually, a dog’s breakfast. The final draft possessed scant evidence of either legal logic, historical understanding or literary skill. Strictly-speaking, it wasn’t even a constitution. If the generally accepted meaning of the term is a document enshrining the supreme law of a nation; a template of rights and responsibilities against which all other laws and proposed laws may be tested, and if found wanting, struck down or set aside, then their draft constitution was anything but.

 

Long on bicultural psycho-babble, but woefully short on the clarity of vision and elegance of design that constitutional architects have, historically, sought to provide, the draft contained little more than a confused reiteration of the political and electoral conventions New Zealanders have spent the best part of 170 years defining and refining.

 

The central, and by far the most important of these conventions, is the convention which declares Parliament supreme: the convention which prevents any other locus of power within the state – most particularly the Judiciary – from over-ruling the legislative will of the people’s elected representatives “in Parliament assembled”. It is this, the convention of parliamentary supremacy, which reduces any exercise in constitution-drafting to little more than an enumeration of legal and political good intentions.

 

It was the fifty young students’ failure to boldly and proudly affirm this, New Zealand’s existing constitution, which most disappointed me. How I wish they had looked around the Legislative Council Chamber, analysed the political and economic forces responsible for bringing them together, and then brazenly rejected the carefully constructed agenda dictating their every move.

 

If only they had declined to be pawns in the game being played by the Constitutional Advisory Panel – that gangrel offspring of the National and Maori Party’s 2008 Confidence & Supply Agreement. If only they had refused to play the role of lab rats in the Panel’s quixotic quest to incorporate the Treaty of Waitangi in a new, bi-cultural, binding (and inevitably judicially-defined) New Zealand constitution.

 

Because that’s what real constitutional architects do: they shake off the constraints imposed by those who set the political agenda – and then proceed to write their own.

 

In fairness, however, I should congratulate the fifty young university students for demonstrating to those who would play fast and loose with our democratic traditions and majoritarian instincts, just how difficult – if not impossible – it will be to impose anything remotely resembling a judicially-defined, bi-cultural constitution upon the New Zealand people.

 

These  young New Zealanders may have gone along with the well-meaning McGuinness Institute’s wildly optimistic constitution-writing exercise, but, miraculously, the confused, cobbled-together and internally contradictory non-constitution they eventually succeeded in drafting does reflect the radically loose, ingeniously dispersed and infinitely adjustable constitutional instruments that make New Zealand work. They declined to be ruled by unelected judges. They neglected to entrench the Treaty of Waitangi. And they simply refused to surrender Parliament’s supremacy.

 

Maybe not so disappointing after all.

 

This essay was originally published in The Dominion Post, The Waikato Times, The Taranaki Daily News, The Timaru Herald, The Otago Daily Times and The Greymouth Star of Friday, 14 September 2012.

A Democratic Canterbury - If You Can Keep It

If You Can Keep It: Framer of the US Constitution, Benjamin Franklin, understood what many New Zealanders seem to have forgotten: that democracy is not, and must never become, someone else's game; a spectator sport. If Cantabrians wish to keep their democratic institutions - they must fight for them.

 

CANTABRIANS, why aren’t you on the streets? This National-led Government has overturned your democratic rights for a second time – to barely a murmur of protest. In the face of such political passivity, what’s to prevent the politicians responsible for cancelling two regional council elections from cancelling twenty?

 

There is a cautionary (and possibly apocryphal) tale which describes Benjamin Franklin emerging from the 1787 Constitutional Convention in Philadelphia and being accosted by a local woman who demanded to know what form of government he and his fellow delegates had given her. “A republic, madam,” Franklin is supposed to have replied, “if you can keep it.”

 

A Republic, if you can keep it. Roughly translated from the Latin, res publica means “this thing of ours”. Franklin knew what many New Zealanders appear to have forgotten, that democracy is not, and must never become, someone else’s game; a spectator sport.

 

This thing of ours. This arrangement we have worked out among ourselves. This set of rules we have devised to keep us free, and to prevent the high and mighty from traducing our rights, making off with our property and turning us into slaves. This is the most valuable thing we, as ordinary New Zealanders, possess. And if we allow “this thing of ours” to become “that thing of theirs”, then all our constitutional guarantees and safeguards are rendered useless – and we are lost.

 

Apart from the passivity of Canterbury’s people, there is another indicator that the province is in danger of relinquishing its grip on res publica. It is contained in the joint declaration from Local Government Minister, David Carter, and Environment Minister, Amy Adams. Right here, in this sentence:

 

“In the interests of Canterbury’s progress, and to protect the gains the Commissioners have made, the Government has decided the best option is to continue with the current governance arrangement.”

 

Note, particularly, David Carter’s use of the word “governance”. Over the course of the past quarter-century this word has slithered, unbidden and almost unremarked, into our leaders’ political vocabulary. Most people assume that “governance” is simply a dandified version of “government”. An expression used by politicians and bureaucrats in order to sound more knowledgeable than the average citizen.

 

But, most people would be wrong. “Governance” is the word used by those who seek to curb and control the naturally obstreperous and decidedly messy processes of democratic government. Why? Because “government of the people, by the people, for the people” – as Abraham Lincoln so succinctly defined the democratic impulse – cannot be relied upon to deliver the “right” results. “Governance” is all about delivering the outcomes that “government” cannot deliver. The outcomes which unfairly benefit minorities and/or vested interests. The private designs and schemes which the open and unfettered transaction of public business inevitably expose to the scorn and sanction of an outraged electorate.

 

Canterbury’s current “Governance” has, therefore, some very important questions to answer.

 

What, precisely, is the nature of “the gains” that its Government-appointed Commissioners have made? Cantabrians might well ask. They might also ask which individuals and groups have benefited most from the “progress” Canterbury’s appointed rulers have (allegedly) been making? And by what right Central Government continues to deny the citizens of the Canterbury region access to the machinery of self-government, and the democratic authority to determine their own future?

 

The answers to these (and many more) questions are certainly not to be found in the Ministers’ Joint Statement. Neither, I might add, is the word “democracy”.

 

That these constitutional and political burdens should be laid upon a city and a province already groaning beneath the weight of natural disasters and a stuttering economic recovery rubs additional salt into already-painful wounds. It’s almost as if, perceiving the region’s capacity for resistance to be dangerously compromised, the Government has seized the opportunity to conduct a malign constitutional experiment upon its exhausted population.

 

For its appointed Regional Council is not Canterbury’s only instance of elite “governance” supplanting local and democratic “government”. The Christchurch Earthquake Recovery Authority and its all-powerful Minister, Gerry Brownlee, are further expressions of the Government’s determination to be presented with only the “right” results. Cantabrians might also contemplate how frequently the word “governance” trips off the tongues of Christchurch City Council bureaucrats, and how often City Councillors determined to do their democratic duty are charged with making the city council “dysfunctional” – the very same charge which condemned their regional council to death.

 

Cantabrians, the love you bear for your region, along with your determination to shape its destiny, is being tested. The promise you were given, that regional democracy would be restored in 2013, has been broken. This National-led Government now waits to see how far you, the people of Canterbury, will go to keep your res publica.  Every New Zealander who still believes in democracy waits with them.

 

This essay was originally published in The Press of Tuesday, 11 September 2012.

The Iron Bed Of Procrustean Economics

Made To Order: Like the mythical monster, Procrustes, neoliberal economists are offended by the real world's inability to fit into the iron bed of their assumptions. No matter. Reality can always be "struturally adjusted" to conform to neoliberalism's Procrustean specifications.

 

PROCRUSTES was an exacting host. Travellers offered a night’s rest on his iron bed never fulfilled his expectations. Inevitably, they were a head too short or a foot too tall. No matter. Procrustes had a simple remedy. If his guests proved too short he stretched their bodies until they measured up. If they were too tall, he just lopped off the bits that stuck out. Unsurprisingly, the Athens to Eleusis Road, which passed by Procrustes’ forge, acquired a grim reputation.

 

The Greek hero, Theseus, put an end to Procrustes’ reign of terror by forcing him to lie on his own beds. That’s beds, plural, because, of course, there had always been two: a long bed for the short guests and a short bed for the tall ones. And since not even the monstrous blacksmith, Procrustes, could be both short and tall at the same time, Theseus was obliged to serve him as he had served others. He did not survive the process.

 

His infamous bed, though, has endured – at least in the English language. Whenever we are obliged to conform to someone else’s undifferentiated and unyielding expectations, we say they are fitting us to a “Procrustean Bed”.

 

Never has the term been more appropriately applied than as a metaphor for contemporary economics. Like the unfortunate travellers along the Athens-Eleusis Road, the nations of the world are invited to measure themselves upon the iron bed of Procrustean Economics and, just like the ogre’s victims, they inevitably find themselves being “structurally adjusted”.

 

It was not always so. As the Norwegian economic historian, Erik Reinert, persuasively argues in a paper presented to the New York-based Social Sciences Research Council, there was a time when not only economists, but ordinary members of the public, could choose between a range of radically different and fiercely competing economic theories.

 

Not any more: “Today we are in the extraordinary situation that these economic theories – covering the whole political spectrum – have virtually disappeared from practical use.”

 

What we are confronted with now, Reinert says, is an “academic monoculture” – with all the risk of catastrophic failure that the term implies.

 

Nor can we rely upon the democratic process to rescue us from the consequences of such failure. Unlike the economic crises of the past, when competing economic prescriptions recruited political champions from within the major political parties, the present crisis has generated an astonishingly uniform political response. Between the parties of the Left and those of the Right minor differences of sequencing and emphasis certainly do exist, but there are no politicians of any stature within the world’s significant economic powers willing to identify themselves with a fundamental challenge to the neoliberal paradigm.

 

Barack Obama may have campaigned in the poetry of “Hope” and “Change”, but as President he has governed according to the very same, prosaic, rules as the Bush Administration, and with the assistance of many of the same personnel.

 

The contrast with Franklin Roosevelt could hardly be more striking. Confronted with a financial system in near collapse, Roosevelt called down the wrath of heaven upon the money-changers of Wall Street and embarked on a “New Deal” that both confronted and confounded the conventional economic wisdom of his day. But President Obama, far from driving the money-changers from the Temple, calmly set about reappointing them to the positions from which they had overseen the gravest financial catastrophe since the Great Depression.

 

The situation in New Zealand is little better. Labour makes a great virtue of the fact that it has signed-up to many of the neoliberal Treasury mandarins’ pivotal recommendations. Where Prime Minister Key refuses to touch National Superannuation, David Shearer promises to lift the age of entitlement and sever its relationship to the average wage. Where Bill English rules out a Capital Gains Tax, David Parker promises to introduce one. Unlike its hard-pressed wage and salary earners, the economically orthodox business leaders of this country have little to fear from a change of government.

 

If Procrustes had two iron beds upon which to stretch or truncate his victims, the current neoliberal establishment possesses two political parties to fend off any genuine ideological challenge. Both parties insist that New Zealand measures-up to the financial markets, and if it’s found wanting, both are ready to lop off a billion or two.

 

Where is Theseus when you need him?

 

This essay was originally published in The Waikato Times, The Taranaki Daily News, The Timaru Herald, The Otago Daily Times and The Greymouth Star of Friday, 7 September 2012.

Without Fear Or Favour

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.