Danger in political attacks on judges
Judges are facing intense debate and criticism over court decisions like never before, and it risks undermining our democracy. Debate and conversations can be an encouraging sign of interest in our legal system and demonstrate our free and open democratic society. But sometimes the way we talk about the judiciary and their decisions can be harmful to this important institution.
In my role as president of the New Zealand Law Society I have observed an increase in comments and unhelpful observations that go much further than criticisms or discussion of judgments, particularly around Supreme Court decisions. Members of the profession have also raised this concern with me.
In recent years, we’ve seen polarising criticism of the judiciary in other countries, and the risks of politicisation – or the perceived politicisation – of the judiciary are clear.
Where confidence in the judiciary is lost, the public can become hesitant to trust the courts to protect their rights, impacting on their willingness to take issues to court, and to accept court decisions. I’d hate to see this in New Zealand. We have a very different system here. Despite what is being said publicly, we have a fairly conservative judiciary. A judge addressing tikanga Māori, in a case where it has been raised by the parties or where legislation requires it, is not “judicial activism”.
The judiciary is an easy target – judges cannot speak in defence of themselves or their judgments. The careful balance of powers in our system of government means the branches of government should perform their own functions, and not those of another. The judiciary is separate to government, and its functions mean it must remain apolitical.
The Supreme Court’s recent decision allowing Mike Smith to proceed with his claim against Fonterra and others has brought this issue to the fore. Missing from some of the various criticisms and claims of an “activist judiciary” is the fact our Supreme Court has simply allowed the claim to proceed to a full hearing. The courts have always had a role in the development of the law, and it is the Supreme Court’s job to consider novel questions of law.
Concerns were also raised when the Supreme Court declared in 2022 that the law preventing 16- and 17-year-olds from voting was inconsistent with the New Zealand Bill of Rights Act 1990. The Supreme Court noted this inconsistency might be able to be later justified, but in this case the Attorney General had failed to provide sufficient evidence about why the age limit was set at 18. This declaration by the judiciary initiated a process – a process created by Parliament. It did not change the law. This process involved a government response to the declaration, and consideration and debate by Parliament about how – or whether – to respond. The process worked.
This growing criticism is of great concern not just to the Law Society but also the New Zealand Bar Association. President Maria Dew KC says: “It is fundamental for our democracy that judges are not the subject of personal attack or criticism that may risk them being restricted in their role. Judges must be capable of being able to freely play their constitutional role in Aotearoa New Zealand.
“This does not mean their decisions are not open to challenge, however personal attacks on individual members of the judiciary or generalised attacks on a particular court undermine the importance of our courts as institutions that we all ultimately rely upon to do difficult work for our community.”
The Law Society and the legal profession have a statutory obligation to promote the rule of law, and it is generally expected that this involves speaking in defence of the judiciary and our legal system, where necessary and appropriate, and it feels very appropriate right now.
But that is not to say that there can be no criticism or questioning of court decisions. There will always be one unhappy party to a case, and lawyers and members of the public who think a decision is wrong. When done the right way, this kind of challenge and analysis helps to develop the law.
The Honourable Justice Tompkins may have said it best 30 years ago: “I do not for a moment suggest that a judge is to be immune from public criticism. On the contrary, any person, including politicians, should feel free to comment adversely, if that is what they think, on any judge’s decision.
“But a general attack on the judiciary as a whole strikes at the very root of that public confidence that is so essential to the judicial system.”
The rule of law and the administration of justice require public confidence in the judiciary. New Zealanders must trust in the honesty and integrity of judges, and in the impartiality and fairness of their decisions. Unfair or inaccurate criticism of the judiciary erodes this public confidence and weakens our justice system. If this continues, where are we heading?