I swear that I will well and truly serve Her Majesty Her heirs and successors, according to law, in the office of Judge and I will do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will. So help me God.
Such is the oath of office taken by all judges on appointment to any New Zealand court. The content of the oath is deceptively comprehensive and expresses ideas once thought to be timeless but not much in vogue at present. Leaving aside all questions of the Monarchy it requires the new judge to do two things and they are; to do “right” to all New Zealanders according to the laws and usages of the country. Not be it noted to do anything trendy such as be fair or “just” or “helpful”, or “compassionate”. The requirement is to do” right” as distinct from “wrong” (a notion well understood by older generations but too censorious to be much in vogue today). That requirement to do right is tightly circumscribed by the requirement that it be within the “laws of usages of New Zealand” It is these few words which describe and limit the role of a Judge, and which absolutely prohibits a Judge from deciding cases according to his or her own views or conscience, or from encroaching on the role of Parliament as the supreme law making body. Crucially a judge must leave his or her own opinions on the issues of the day at the court door and should never while a sitting judge air them publicly.
Reinforcing these crucial promises which the new judge makes on appointment is that this limited role about to be undertaken, must be carried out without fear, or favour affection or ill will. The fear bit is not something that does not trouble New Zealand Judges. Unlike may overseas jurisdiction judges here are free from the early morning knock on the door or the massive public demonstrations. The real difficulty in honouring the oath comes in not favouring one party to litigation above another or showing affection or ill will to a party. These are insidious human instincts which are difficult to detect and control. Some judges never do: thus, they may take a set against, or favour a lawyer who regularly appears before them, or warm to a type of litigant or cause. Fortunately, such instances are rare but serve to illustrate the fact that those appointed to be judges are ordinary human beings called on to do a difficult job. They come from all walks of life and carry with them many of the qualities and prejudices common to the rest of humanity. Ideally the only two qualities which are crucial to the work of a judge and which sets them apart from the rest of humanity are: knowledge of the law, and wide experience of litigation in the courts. The latter is crucial because the daily fare of a judge is to decide disputes according to law and in doing so needs to have been exposed to wide range of commercial and criminal litigation and to have observed first hand on a daily basis the foibles of human nature: the deceits and the lies, the confused but decent and believable witness, and the heartbreak that the full weight of the law bears on a person’s expectations and livelihood. Any judge not having lived through these experiences (and some have not) will struggle to honour the oath of office and will come to rely more and more on his or her own instincts, non-legal experiences, and notions of right and wrong in carrying out judicial work. Certainly mere academic brilliance alone is no qualification to hold the office of judge. At which point enter the interventionist judge.
The Interventionist judge is a fancy way of describing those judges who either have not understood the oath of office or don’t care about it. This not a new phenomenon or confined to New Zealand. Every common law jurisdiction has examples. To name a few: In the United Kingdom Lord Denning regularly raised the ire of the senior appellate courts by refusing to follow binding precedents, instead striking out on his own and creating new law. It never seemed quite so blatant in his case because he wrote beautifully and with such verve that some of his judgments would have made exciting novels. His description of the fate of the second world war Atlantic convoy P76 in a libel case brought by a former German officer makes riveting reading. But the fact remains that he sought to modify the law according to his sense of what is just and fair and often received a dismissive hearing on appeal. Superior Court judges in Canada and Australia are regularly criticised for inventing aboriginal rights where none exist in statute, or the common law and for which there is no precedent. The United States Supreme Court is not immune. In the recent case involving the exercise of Presidential prerogative to prohibit immigrants from named countries from entering the United States a minority led by Justice Sottomeyer labelled the prerogative unconstitutional because it was in her view, and based on her upbringing and life’s experiences, an exercise in “Islamophobia”. Fortunately, the majority applied the law whatever may have been their privately held views and regarded it as an unexceptional exercise of the prerogative conferred on the President by the Constitution.
Perhaps the most recent blatant excess of the narrow remit of a Judge at the highest constitutional level was the behaviour of Baroness Hale, a member of the United Kingdom Supreme Court, and now it’s President. In giving a talk in Malaysia she expressed her private views on matters relating to the constitutional issues raised by Brexit. This ahead of hearing of one of the most important constitutional cases to come before her court in generations- i.e. whether or not the Cabinet can decide on what terms to sever Britain’s membership of the European Union, or must it be a decision of Parliament. Having expressed her preference for the latter in advance unsurprisingly she was in the majority in denying Cabinet the power it sought to exercise. Albeit it had long been recognised by the courts that the executive, and it alone had power to make and unmake treaties.
In similar vein in New Zealand is the decision of Justice Matthew Palmer a former Treasury employee and legal academic to give a paper to a meeting held by the Melbourne Law School on 11 -13 July 2018. The Paper is entitled “Indigenous rights, judges and judicial review” and for good measure a subtitle “frontiers of public law.” In what must have been a lengthy lecture and densely argued paper the Judge sets out his views on what he takes to be the proper judicial response to rights and remedies claimed by indigenous peoples both in New Zealand, and presumably Australia. It begins with the assertion that “the deterioration of indigenous people in their “culture” (by which he presumably means the social customs of the indigenous peoples before the advent of European settlement) reduces the cultural diversity of the world”. In itself only one of a number of competing historical views of the consequences of rise and fall of civilisations and societies and therefore a doubtful basis on which to construct his argument. Nevertheless, the learned Judge proceeds with the theme of his address which is that the existing constitutional arrangements of separation of powers between the judiciary and a sovereign Parliament are no longer serviceable when it comes to the place, and interpretation of the Treaty of Waitangi in our jurisprudence. Whether the existing arrangements are adequate for deciding all other matters which come before the court he does not say. He cites with approval the observations of a Canadian academic that such a division of power between Parliament and the Courts is “stale,” and appears to bemoan the fact that Parliament “speaks more loudly” than the judiciary. He argues for the balance between the courts and Parliament to be altered in favour of the courts having more power to protect the rights of indigenous people in a “political constitution” (whatever that might be).
There is much else in a similar vein in the forty-nine-page paper, and none of it is either original or, if spoken by an academic objectionable, but Matthew Palmer is no longer a University lecturer he is now one of her Majesty’s Superior Court Judges. He has sworn the oath of office and takes the Queen’s shilling. As a Judge he will no doubt be called on the decide matters of greater or lesser importance involving indigenous peoples. He therefore no longer has the luxury of publicly airing his views on matters of law, and in particular those which regularly form the subject of litigation in the courts and which as a Judge he may be called upon to decide.
The reason why judges should be so constrained and why they do not have the luxury of publicly airing their views is that referred to earlier. Although there is no mention of fairness in the judicial oath it is part of the laws and usages of New Zealand that in applying the substantive law Judges approach all cases with an open mind and give all sides a fair hearing. This involves listening to the facts and submissions applying the relevant law and giving reasoned decisions. Nothing more or less. It is known as “natural justice” but means no more than both teams having a chance to bat bowl and field, or if you are Australian for whom cricket analogies are probably no longer applicable, a fair suck of the sav. To allow a judgment to be influenced by preconceived ideas strikes at the heart of the judicial process, brings the administration of justice into disrepute and endangers the rule of law. Put simply if a litigant has reason to believe that a judge has made up his or her mind or has pre-conceived views on an issue then why bother with the expense and trouble of seeking a judgment of the court. In that event the Rule of Law is fatally compromised.
With this in mind the Judges in 2013 updated the guidelines for “judicial conduct. They cover a range of situations in which a Judges personal views may conflict with the requirement of impartiality including the giving of academic papers which is acceptable within a narrow compass. The cardinal cautions expressed in the guidelines relevant to this matter are:
“In particular a judge should avoid political controversy. It is important to avoid using judicial office to promote personal views and to avoid the appearance of capture by political organisations or causes.” (my emphasis).
Judges should avoid expressing opinions on matters which may arise in litigation and which may lead to concern about the impartiality of the judge.
The independence of the judiciary imposes reciprocal obligations on judges to respect the proper role of Parliament and the Executive
A judge will need to be careful about expressions of views which might give the appearance of bias particularly in relation to differences arising from culture, race, religious belief, or gender (my emphasis).
The subject matter of the judge’s paper offends each of these guidelines. The topic of indigenous rights and the Treaty of Waitangi chosen by Justice Palmer in his paper on the one hand, and the sanctity of the rule of law on the other has a particular current significance in New Zealand and has been the subject of much litigation. But of more concern is the fact there are before the High Court in excess of two hundred claims by Maori litigants in which are sought proprietorial interests in the foreshore and coastal water denied other New Zealanders. I cannot recall a more sensitive and divisive social issue and one so fraught with disruption to the existing generally harmonious state of race relations in New Zealand. It will require the most rigorous and impartial application of the relevant legislation to the facts of each individual case without fear or favour, affection or ill will. The respondents to these claims must have complete confidence in the impartiality of the chosen judge, and there will be a number to objectively decide the outcome according to the laws and usages of New Zealand none of which is possible if the Judge has publicly declared views which call for a reordering of the constitutional balance in a way that can only be intended to favour indigenous people above all others. In giving this paper the Judge has disqualified himself from dealing with any of these cases thereby imposing an added burden on fellow judges. In future he would do well to read, mark and inwardly digest the words of a former Lord Chancellor Lord Kilmuir author of the Kilmuir Rules on the subject of extra Judicial pronouncements:
So long as a judge remains silent his reputation for wisdom and impartiality remains unassailable but every utterance which he makes in public except in the course of his actual performance of his judicial duties must necessarily bring him within the focus of criticism.