During her term as Attorney-General, Margaret Wilson reminded all members of parliament (MPs) of their responsibility to demonstrate restraint and respect when commenting on judges or the courts. Her caution is worth repeating in light of the recent ignorant criticism of two judges in the press and on social media. Her wise words, while directed at politicians, are of equal importance to the fourth estate and the virtue signalling mob that follows them.
“Judges have sworn an oath to do justice without fear or favour. I am sure all MPs agree the judiciary is entitled to exercise their judgment without pressure or influence.
"MPs and ministers have greater responsibilities than the public. Members of the public will have their own views, and even though they have not heard the arguments in the courtroom, nor be aware of what the law requires, they are generally entitled to say what they like.
"Constitutionally the judges' role is to speak through their judgements.
"There is nothing wrong with a politician advocating a change to the law. But attacking a judge personally, either directly or by implication, risks bringing the judiciary into disrepute. Unfounded attacks on judges are unfair and not in anyone’s best interests."
Judicial rulings are criticised all the time, and by all manner of people. This is as it should be. Judges aren't immune from pointed criticism. Their decisions can impact everything from who goes to jail or cares for children, has the rights to this land or river or contractual benefit of millions of dollars. That remarkable level of authority does not come with the right to never have one's sensibilities offended by disparaging remarks.
Our system demands a level of impartiality from judges that would be inappropriate to ask of any other citizen. Judges' authority depends almost entirely on their public legitimacy — our shared understanding that even when you are on the losing side of a court case, you need to respect the outcome.
But where, exactly, should we draw the line on criticism of our judges? And, in these days of instant social connection, who speaks for us? Overseas reflection about the role of courts suggests several considerations.
Lord Denning in ex parte Blackburn (No.1) is a good place to start. A private citizen sought an order to compel the police commissioner to enforce certain provisions of the Gaming Act. A QC, also an MP, launched a personal attack on the court and judges that some thought was contemptuous. At the heart of all three judgements was, as Lord Denning said, “freedom of speech itself.”
"It is the right of every man, in parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not.
"So it comes to this: Mr Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right. The article contains an error, no doubt, but errors do not make it a contempt of court. We must uphold his right to the uttermost.”
All three judges expressed the view that criticism of the courts’ judgements should be accurate and fair because judges normally do not have the ability to respond publicly. That is, or was, the function of the Attorney-General. However, while we must remain open to healthy criticism there are boundaries.
First, while it is quite common for citizens to complain about an adverse ruling, in the modern era it has never been considered appropriate to defy the ruling — or otherwise seek to undermine the court's authority. Two examples from America are instructive.
When President George W. Bush responded to a Supreme Court decision giving Guantanamo detainees the right to challenge their detentions, he said, “We'll abide by the court's decision,” but “that doesn't mean I have to agree with it.” Good.
Lashing out at a “so-called judge” on the other hand, seems to question the court's very authority. The more colourful complaint by Teddy Roosevelt is an example of going too far. He once said of Justice Oliver Wendell Holmes, “I could carve out of a banana a judge with more backbone than that.”
Second, there is a difference between criticising a ruling and personally attacking the judge. Any attack on any one judge affects the independence of us all. Attacks made without context are not only unfair but also unlawful. It matters not whether the attack is made in the guise of academic support for a worthy cause, or the promotion of a behaviour complaint, or is a back-corridor whisper in the halls of the powerful to blight a person’s judicial service. Context is everything. Especially in these times of instant communication where the sound bite or quick grab at a story seems more important than reflection and balance.
Of course, judges do sometimes behave unethically, in which case personal criticism is fair, provided it has some actual basis. However, if a complaint has merit, then while respecting privacy and protecting the powerless, it must be given an independent hearing where points of view can be considered in their proper context and the issue can be fairly resolved with durable effect under the rule of law.
There is also a difference between expressing disagreement after the fact and trying to pressure judges to influence their future decisions. Such as lobbying for preferential treatment before the law or threatening continued judicial service for unpopular rulings — this is clearly over the line.
Finally, not all critics are the same. Politicians, lawyers, journalists, and bloggers have unique platforms of power, persuasion, publicity, and popularity, and with those comes unique responsibility. Careless statements that suggest a judge or their rulings are unpopular can do great harm to our independence and undermines the system of rules and laws we agree to live by. However, much worse than this, personal attacks can pose real risks to a judge’s wellbeing and their family’s safety.
It's not enough to simply condemn such criticism. We need to be clear on what exactly is wrong with it and be vigilant in holding others to the same standard. We must value and defend and protect our judges and their families. If a single judge has no value, is rendered defenceless, or remains unprotected then what of the rest of us? And who speaks for us? We do. And if not us, then who?
If you would like to share your point of view, please email admin@janz.nz with your thoughts.
Gerard Winter
JANZ President