Judges and perogatives #
*There is no situation so bad, that the intervention of the law could not make it worse. *Brendan Behan
Judges are just people,” she said irrelevantly. “They start out that way, I’ve heard.” ** Apologies to Raymond Chandler**
*Why hire a lawyer when you can buy a judge? *
Within society, organisations set up to serve our needs, appoint officials as authority figures to maintain fair independent governance. Judges are supreme and have acquired an honoured position of inordinate privilege and trust in organised societies with ample discretionary prerogatives to adjudicate disputes. However, the greater the power; the greater the responsibility. Few people can handle unfettered power responsibly; its beguiling effect can seductively lure them into a delusion of infallibility, a culture of impunity and immunity from prosecution for malfeance.
Judges have an undeniably difficult job. While the average Judge’s daily routine is rather mundane (i.e. giving out fines or settling old scores, their job can go from being really boring to being really demanding in a matter of hours. They also have to be on top of broad issues facing society today.
Stephen Breyer, an American Supreme Court justice, suggests that the judiciary’s hard-won authority could be marred by reforms premised on the assumption of ideological bias. The Court earned its authority by making decisions that have increased the public’s trust. If public trust is now in decline, adhering to their oaths is the only way to improve it. Judgements relying on context clues, sound inferences, and inductive reasoning appear to have vanished. Any ulterior agendas further erode public trust. Without the public’s trust, the Court would no longer be able to act as a check on the other branches of government or as a guarantor of the rule of law, risking serious harm to our constitutional system.
The Judicial Legal fraternity has had a chequered past, and like other institutions appears to have it ups and downs, presently heading blithely into decline. How did it come to this? So much good from so many Judges, soured by a few. The sad reality is that as in nature, parasites generally attach themselves to healthy hosts, so too the Judicial world appears to be infested; alienating itself from the public; heartbreaking and gut-wrenching considering the sterling work done by the majority. It’s all about perception and this is where it gets problematic. The good Judges suffer due to the failure of adequate oversight and correction. South Africa, one of the world’s most fragile democracies, proved to be an exception when Oscar Pistorios’ lenient sentence was overturned. Why the original Judge was allowed to determine the final sentencing defies reason.
This distinction between the role of the advocate and that of judge is critical.
Unlike a judge, a barrister’s task is not to set out the true position of the parties, but rather to manipulate the elements of the law and apply them to suit their brief. Judges engaging in such a manner, indicate they have failed to make that transition Judges need to have an inquiring mind rather than: “Oh, what a sweet and soft and healthy pillow is ignorance and incuriosity, to rest a well-made head!"
When Judges make final Judgments, not based on empirical and substantiated evidence, they bring the entire Judicial system into disrepute, eroding their own credibility and reputations, diminishing our respect and trust in the very institution we heavily rely on.
The watershed of Greek democracy and justice began with the poets Hesiod and Solon. In Works and Days, a didactic poem written by the very early ancient Greek poet Hesiod, probably around 700 BCE or earlier, attacks unjust judges for granting an inheritance to his less-than-responsible brother.
Hesiod’s main concerns were complaints regarding oppression and the injustice of arbitrary jurisdiction by the aristocracy resulting in blood vengeance and constant feuds between clans. Communities needed trustworthy supreme authorities to ensure social peace and economic prosperity. A recurring phrase “injust justice” or “unjust judgements” runs through his poetry.
Historians find the growth, development and decline of Greek city states a mother lode of evidence of how and why societies flourish and decline.
Early Mediterranean History demonstrates that the rise and fall of city states is determined by the degree of equality enjoyed by the general public. Prosperity is tied to equality in areas of politics, economics, social standing and education. As soon as disparity becomes evident, faith, confidence and trust begin to erode and the city state begins its decline.
Another poet, Solon, is generally credited with the introduction of Justice and Democracy to Athens. Three hundred years before Socrates, Plato and Aristotle, Solonic authority decreed a fair and just society for all by establishing a system of government and justice that freed all members of the community from the oppression and injustice of the privileged. Solon believed the family to be the foundation of society and ensured that family disputes were resolved fairly and equitable.
The statue of Lady Justice in Athens depicts justice as equipped with three symbols:
a sword symbolising the court’s coercive power;
a human scale weighing competing claims in each hand; and
a blindfold indicating impartiality.
When we refer to “blind justice”, we mean blind to outside influences.
European Justice has more primordial origins also stemming from the need to resolve inter and intra family disputes that were tearing society apart. Legal systems in England and Europe in the Dark and early Middle Ages believed in the Judgment of God, i.e. that the facts were gathered and the verdict delivered by an inscrutable deity. The procedure was accusatorial: one person accused another; the trial took various forms, including trial by ordeal and the judicial duel, or trial by single combat (trial by battle), in which an armed champion could stand in for accuser and accused.
King Alfred The Great, established the first Anglo Celtic legal code; he assembled the laws of Offa and other predecessors, and of the kingdoms of Mercia and Kent, adding his own administrative regulations to form a definitive body of Anglo-Saxon law. Much of British law was based on the Bible including the Ten Commandments.
Justices of the Peace
The origin of Justices of the Peace has been traced back to Britain in 1195, when Richard the Lionheart commissioned certain knights to preserve the peace in unruly areas. They were responsible to the King for ensuring that the law was upheld and they were known as Custodes Pacis (Keepers of the Peace). The Custodes Pacis were the forefathers of Justices of the Peace.
What is the proper balance between Judicial independence and regulative oversight? Politicians are prone to react viscerally to public fears or insecurity, while the people have only marginal power over the appointment and removal of a Judge. When it is clear that a Judge lacks the qualifications or competence to evaluate or assess evidence acceptably, who can hold them to account?
A judge is a servant of the law and is commissioned by the Queen and the community to do their duty, without fear or favour, affection or ill will. Their prescribed duty is the pursuit of rigorously objective and balanced analysis that is uninformed by any (conscious) agenda.
While most Judges pride themselves in their integrity and honour, there are and have been many examples of Judges with arrogated presumptions of unaccountable power and solipsistic vanity who abuse that power.
Stephen Breyer, an American Supreme Court justice, suggests that the judiciary’s hard-won authority could be marred by reforms premised on the assumption of ideological bias. The Court earned its authority by making decisions that have increased the public’s trust. If public trust is now in decline, adhering to their oaths is the only way to improve it. Judgements relying on context clues, sound inferences, and inductive reasoning appear to have vanished.
Any ulterior agendas further erode public trust. Without the public’s trust, the Court would no longer be able to act as a check on the other branches of government or as a guarantor of the rule of law, risking serious harm to our constitutional system.
Many countries have looked to Canada as their guiding beacon in terms of social justice:
*“The meaning of the Rule of Law is very simple and well known to us all: the law must stand supreme as the source and fabric of all social organization. It is the law which provides the framework for relations among individuals as well as between the individual and the state: the law delineates the scope of each person’s liberties and responsibilities and defines the powers and duties of government. All obligations imposed on the individual and all restrictions upon his or her liberty must be justified by law. This is the most fundamental guarantee of equality and freedom we have achieved as a society. The Rule of Law protects individuals from arbitrary and capricious treatment at the hands of government and fosters confidence in each of us that the power of government to interfere with our lives is finite and accountable. It allows us to live together in freedom and harmony and provides the common ground for social progress and prosperity.” *The Right Honourable Brian Dickson P.C. (from a speech to the Canadian Bar Association)
He also quotes this guiding principle from an Ontario appeals decision:
“The Supreme Court is not a self-created body with original powers; it is not a benevolent autocrat with full powers to act as it should think fit; the court is an institution organized by the people through their representatives for the purpose of giving to those who apply to it their rights according to law, the law not being made by the Court but laid down for it by authority; the court has no right to give a decision in accord with its own views of equity and good conscience, as distinct from the rules laid down for it. The Court has no right to take power unto itself which is not conferred by the people.” Scott v. Scott-Ontario Court of Appeal 1DLR53, 64OLR422
The Australian Chief Justice Robert French comments on the interpretation of Statutes:
The common law is an important source of principles governing the interpretation of statutes. Those principles mark constitutional boundaries between courts and legislatures which must be respected when statutes are interpreted. The function of the common law in relation to the interpretation of statutes therefore has a constitutional dimension. It underpins the institutional function of the courts as the authoritative interpreters of the law. In so saying, of course, it is necessary to recognise the reality that many other people interpret the law in a way that is effectively final for many members of the community. There are vast volumes of ‘soft law’ to be found in manuals and guidelines given to public officials who administer the delivery of government services and carry out a vast array of regulatory functions. While that is the reality, the ultimate determinant of interpretation under our system, in the event of dispute, is the judicial process.
It is vital that if pubic confidence is to be maintained that the judicial process of interpretation be seen as objective, fair and supported by grounded evidence. Judges should avoid the “Humpty Dumpty” perception that the meaning of a word is determined by “Who is master, and that is all!”
**Ian McEwan, talking about his novel, *The Children Act, * **McEwan came to the novel, his 13th, from getting to know a couple of judges in the family division of the high court.
“I started reading judgments and thought they were a curiously neglected subgenre of our literature. Nobody reads them, except law students and other judges,”. “I was rather surprised that the very best of them seemed incredibly well written, often rather witty, extremely humane and I began to think also of how your fate as the accused or someone involved in any legal practice very much depends on the character of the judge. The judge is strangely missing from our crime fiction or our fiction that is about the law."
The judge’s business is to wrench morality and the law together.
**Plato **already was perceptive enough to see Justice could be used as trickery.
In The Republic, the character Thrasymachus argues that justice is the interest of the strong—merely a name for what the powerful or cunning ruler has imposed on the people. The rich and powerful make the laws to preserve their positions from the “little people”. Plato argued that justice is internal to the soul, requiring not laws, but discrimination and virtue.
*“I think sometimes the task is to find ways of marrying what is natural justice and a sense of fair play with the great weight of common law and legislation that exists. And quite often fails. Often the law gets things terribly wrong, because it’s a human institution and terrible mistakes are made. But the best judges are the ones who can unite those two things and bring morality and law into a single frame. It requires a great deal of intellectual reach as well as compassion.” ***Jason Steger, **SMH, Spectrum, Sept 20 – 21, 2014.
Cui bono, literally “to whose profit?”, is a Latin phrase which is still in use as a key forensic question in legal and police investigation: finding out who has a motive for a crime. It is an adage that is used either to suggest a hidden motive or to indicate that the party responsible for something may not be who it appears at first to be.
Commonly the phrase is used to suggest that the person or people guilty of committing a crime may be found among those who have something to gain, chiefly with an eye toward financial gain. The party that benefits may not always be obvious or may have successfully diverted attention to a scapegoat, for example.
The famous Lucius Cassius, whom the Roman people used to regard as a very honest and wise judge, was in the habit of asking, time and again, ‘To whose benefit?’ Wikipaedia
Wayward Judges need to be reined in
“I want to… add my voice to those who see danger in judges who have forgotten the traditional and safe role of the judiciary in our society, and in legal developments which are wholly out of step with community needs and expectations.
The danger from straying judges is very real, as ultimately their activities are undemocratic, and undermine the pivotal place of the law in civilised society. They invite disrespect of the law and its expositors, the judges themselves, and thereby contribute to a lessening of the authority of law as the final and accepted final arbiter of process, constitutionalism and conflict—the very characteristics that distinguish our society from the banana republics of the Zimbabwe variety*.”***** Hon Hassell, B., AM, “The State of the Law’, 2004, Dinner Address, Proceedings of the Sixteenth Conference of The Samuel Griffith Society, Perth**
Getting Justice Right
When the courts do get it wrong, they do it on a misguided sense of infallible judgments; a failure to consider all discoverable evidence, follow clear logic and base their conclusions on sound premises. A recent tendency is for the courts to rule - not on the evidence - but on the strength or weakness of the presentation of the argument. In my opinion this reduces the role of a judge to that of a debating adjudicator or even worse, a theater critic.
This can have serious consequences as shown in the December 19th 2014 Lindt Cafe siege in Sydney where the gunman, despite serious allegations, had thrice been granted bail -
In December 2013, a Magistrate, Darryl Pearce, said about an accessory to murder charge, “the case against him was “weak” and that he did not represent a threat to the public”, granting bail for Monis and his accomplice, Amirah Droudis, a judgment tragically proven wrong.
Police originally resisted bail - and it was refused - when he was charged in April, 2014, with sexually assaulting one woman in 2002. But magistrate Joan Baptie granted bail in May, noting he had no convictions for violence. And police say they acted on the advice of the Director of Public Prosecutions when they decided there was no point opposing bail in October, 2014, when Monis was charged with the sexual assault of six more women.
After the siege, Public sentiment was enraged triggering threats of violence against the Judges who revoked bail for his partner in crime, Amirah Droudis, within the week, following an acknowledgement “there had been some failings in the system”. The irony is that she likely poses no threat to society, making this a symbolic gesture.
Monis’s original lawyer, Conditsis, contends it is vital to understand what possessed Monis. “You have to walk in his shoes a little bit; not in sympathy, but to comprehend what happened. It’s very hard if you try to bring a Western understanding to what this guy did."
Monis had fled a corrupt regime in 1996, forced to leave his then wife and children behind, “where people would lose their heads and hands if they didn’t do what they were told”. (That same regime told Australia that it wanted Monis returned to face charges over a $200,000 fraud, but Australia has no extradition treaty with Iran.) Monis had been through the rigours of the refugee process and was found to be genuine.
Before he was bailed on the accessory to murder charges, in December 2013, Monis alleged prison officers bashed him and threw excrement on the wall and floor of his cell and made him stand in or around it. “They told him it was because he had written the letters to the families of their ‘brothers’,” says Manny Conditsis, who saw him the next day.
“It was the only time I’ve seen him break down and cry. He cried like a baby. He was a broken person when I saw him, I can tell you that."
With the multiple charges against him, Monis knew it was highly likely he would be going back to prison - and for a long time. This may have driven him to desperate measures, making him a home grown terrorist.
Judges occupy an invidious position in a contest of narratives - of vested interests in which power rather than quaint notions of truth and logic determine the victor. Generally fifty percent of the participants will disagree with your findings. But if arrived at with sound evidence and reasoned arguments they will be accepted. Many issues are complex, problematic and conflicted. It is cowardly to attack Judges decisions publically as they are often not in a position to defend themselves.
Judges have little training upon accepting their promotions and some find the transition from an adversarial career to a judicial one a paradigm shift too difficult to make.
Evan Whitton writes: (Crikey 09 06 11)
One of the fundamental problems with the adversarial legal system we acquired as a colony of England are that trial lawyers who are in charge of evidence are necessarily adept at sophistry. Judges are not trained as judges separately from lawyers and many fail to make the transition from an adversarial to a judicial mindset.
Taxpayers who fund the system thus cannot be sure that statements by lawyers or judges are the product of justice or of sophistry to serve some other purpose.
We are bombarded with political rhetoric. Diverse religious systems and institutions across the globe proclaim themselves as the guardians of ‘Truth’, ‘Justice’ and ‘Peace’, despite their patent failure to put these noble ideals into practice . It is the miscarriage of justice that saps society of constructive energy and advancement.
Judges are not placed above the universally accepted principles of natural justice, judicial fairness, and sound reason. On the contrary, partiality is a luxury any person in a position of power can ill afford. Public faith, trust and confidence in our appointed officials provides a precious basis for a vibrant democracy and a harmonious, just and civil society.
Power, to some, is measured and exercised through the evasion of accountability. As Tacitus stated: “crime, once exposed, has no refuge but in audacity”
Though Lord Acton had papal infallibility and the absolute powers of monarchs in mind when writing to Bishop Mandell Creighton in 1887, his warnings apply to all people invested with great power, including judges:
….Power tends to corrupt, and absolute power corrupts absolutely…… There is no worse heresy than the fact that the office sanctifies the holder of it."
*“Justice and power must be brought together, so that whatever is just, may be powerful, and whatever is powerful, may be just.” Blaise Pascal *
*“You know the very powerful and the very stupid have one thing in common. They don’t alter their views to fit the facts. They alter the facts to fit their views. *Doctor Who
*“Power is not sufficient evidence of truth”. *Dr. Samuel Johnson
A lawyer or a judge cannot open a case in court by making statements that may have ruinous consequences to the person attacked that the lawyer cannot substantiate or justify by evidence. Similarly, a lawyer cannot plead such statements and assert that they are supported by sworn or affirmed evidence, when he or she does not have a reasonable basis for making such an assertion.”
The duty of a Justice is, first and foremost, to the court – so not putting forward spurious claims which a justice knows are not supported by evidence.
Instead of trying to play verbal legal games with us, it would be better to have solid, underlying arguments, logically developed and supported by grounded verifiable evidence. Judges are required to examine each case closely and make their reasoning accountable to the parties and the public.
The most common failing of Judges is called a Conflict of Interest or as the maxim goes:** **
Justice must not only be done but seen to be done.
There should be no perception of bias or partiality. Judicial
disqualification, also referred to as recusal, is the act of
abstaining from participation in an official action such as a legal
proceeding due to a conflict of interest.
In a recent high profile rape case in America a prosecutor recused herself from a case because she knew a participant. A judge has also recused himself because his granddaughter dated a team member of the accused because of a perceived close relationship.
Judges should pride themselves in being beyond reproach in this area.
Australian Judges - see side bar menu - above left
One of the many positive paradigm shifts of the ***Royal Commission into Institutional Responses to Child Sexual Abuse *** is the increased sensitivity around the treatment of victims (survivors) especially in our courts. Peter McLellan has reset the system by assimilating past trauma into the national psyche, making it acceptable to listen to the victims and believe the hurt, anger and pain and not allow it to be re-enacted to feather the nests of unscrupulous desperate depraved lawyers. Evan Whitton tells of victims vomiting in the witness stand.
Attack on Kirby split High Court
David Marr April 2, 2011
BEHIND-the-scenes division in the High Court ended in a screaming match a decade ago after Senator Bill Heffernan accused the High Court judge Michael Kirby of using Commonwealth cars to procure young men for sex.
A new biography of the judge quotes Justice Mary Gaudron saying the then Chief Justice, Murray Gleeson, ‘‘lost it’’ with her when she proposed they put out a statement defending Justice Kirby.
‘‘He was screaming at me. ‘Who do you think you are? Have you appointed yourself press secretary to this court?'''
The biography, Michael Kirby: Paradoxes and Principles by A.J. Brown, of Griffith University, reveals that the judges were among the first to learn the dossier Senator Heffernan was using to smear Justice Kirby was bogus; that Justice Gaudron became the first known whistleblower in the history of the court by leaking that information; and that the row with Justice Gleeson led to her early retirement in 2003.
Greg Barnes writes:
“All too often judges are criticised for being pompous and out of touch with the community. While this accusation is grossly unfair, it is understandable. Of course, if we insist on calling judges Your Honour and using ridiculously quaint expressions such as “If Your Honour pleases” in addressing a court, it’s no wonder that the deification of the judiciary is alive and well in Australia today.”
|** We keep power in check, which is different to influence or authority**|
*Dignity does not consist in possessing honours, but in deserving them. Aristotle updated to *
* It is better to deserve and not have honours than to have them and not deserve them.*** Twain**
Retired Australian High Court (Canadian born) Judge Dyson Heydon has fired a parting salvo at his fellow High Court judges in an essay that categorises them as overbearing personalities and weaker spirits, with a herd mentality that poses a threat to judicial independence.
In a thinly veiled critique of the dynamic on the High Court, the most solitary figure on the bench in recent years attacked the tendency of some judges to dominate others, in an essay subtitled ‘‘The enemy within’’, published in the Law Quarterly Review.
‘‘Stronger judicial personalities tend to push the weaker into submission,'’
‘‘They stare out from their judgments with the superb elegance of noblemen in Renaissance portraits - utterly confident of their own ability, pretty sure that no other judge has yet grasped the key points and that some may never do so, certain that the parties have not, glorifying in their self-perceived terribilita.''
Sometimes those judges exerted their influence even before oral argument began, in the judicial conferences that were held among the seven members of the bench to discuss the issues of each case.
‘‘In pre-hearing judicial conferences, the activities of dominant judicial personalities carry the danger of creating the appearance and the reality of prejudgment - a closure by members of the court of their minds too early, before word of oral argument has been uttered,’’ Mr Heydon wrote. ‘‘Chief Justice Griffith spoke of the process by which ‘arguments were torn to shreds before they were fully admitted to the mind’. Some counsel now think that they are torn to shreds before they have fully left counsel’s mouth.''
Some folk are stubborn and their minds nigh-unchangeable.
I’m not sure how much real life experience Judges have, but the courts appear to have so thoroughly insulated themselves within their own bubble world – an echo chamber, that they no longer have any way of connecting effectively with reality or the wider community so in fact can be perceived as suffering from their own form of schizophrenia. It is very rare for anyone within the Judicial fraternity to put his/her head up above the rampart and make a public criticism of their colleagues.
Another Retired High Court **Justice Michael Kirby **recommended that protocols be developed to deal with judges who bully counsel or witnesses.
‘‘In serious and repeated cases, bullying by judicial officers should be recognised as an abuse of public office warranting commencement of proceedings for the removal of the offender from judicial office,’’ he said.
‘‘A judge is a servant of the law and is commissioned by the Queen and the community to do their duty, without fear or favour, affection or ill will.
‘‘They have to be held to that, in my opinion, because if they’re not, they’re going to go on [bullying others].''
The rudeness of judges trickles down to junior lawyers in a cycle of bullying and stress that is rife within the legal profession, says former High Court judge Michael Kirby.
While it was difficult for bullying victims - particularly junior lawyers - to take action, Justice Kirby said that bad behaviour should not be tolerated.
Lawyers should pull up judges for being rude in court, for example by saying, ‘‘Your honour might care to reconsider the way that matter was put last’' or by complaining to the Jurists’ Commission, he said. ‘‘A judge is a servant of the law and is commissioned by the Queen and the community to do their duty, without fear or favour, affection or ill will.
‘‘They have to be held to that, in my opinion, because if they’re not, they’re going to go on [bullying others].’’ He recommended that protocols be developed to deal with judges who bully counsel.
Justice Kirby gave a rare glimpse into his personal experience as a gay High Court judge, saying that his sexuality had been an added stress.
*‘‘I had to not be myself. I couldn’t be at peace. I was told I had to be ashamed of it. I wasn’t really, but I knew that’s what I had to be.’’ *Jane.Lee@fairfaxmedia.com.au
The “law” can be, in the immortal words of Thomas Aquinas,* “no law at all, but rather a species of violence”. *
*Lawyers are more likely to suffer serious depression, have more car
crashes or suicides than the general population. A 1997 study compared
the suicide incidence for Canadian lawyers with the general
population using death and insurance records. The suicide rate among
general population was 10 to 14 deaths per 100,000 people. Among
attorneys it was 69.3 suicides per 100,000 people, about 6 times
higher. Suicide was the 3rd highest cause of death for Canadian
lawyers, claiming 10.8% of lawyer deaths, just behind cancer and heart
Recently the NSW Director of Public Prosecutions has circulated a memo to all Crown prosecutors and solicitors warning them to stop bullying one another or face disciplinary action.
In a profession that is bristling with egos and contemptuous of weakness, the memo is emblematic of an underlying misery permeating the ranks of lawyers.
When Judges offend it is called a form of Malfeasance –
The expressions misfeasance and nonfeasance, and occasionally malfeasance, are used in English law with reference to the discharge of public obligations existing by public officials.
*At present the terms misfeasance and nonfeasance are most often used with reference to the conduct of municipal authorities with reference to the discharge of their statutory obligations; and it is an established rule that an action lies in favour of persons injured by misfeasance, i.e. by negligence in discharge of the duty; but that in the case of nonfeasance the remedy is not by action but by indictment or mandamus or by the particular procedure prescribed by the statutes. *Wikipedia
If Airlines are grounded for breaching safety standards; doctors are suspended for breaching codes of practice, surely we can hold Honourable Justices to account for breaching universally accepted codes of impartiality. If they fall short of expected standards, they should be prosecuted to the full extent of the law. It is time to end the immunity for Judges as we have for Absolute Monarchs, Catholic Priests and medical doctors. Impeachment, it should be noted, is not the sacking of a Judge, it is the act of committing a Judge to trial to answer questions. A Parliamentary sub - committee runs the trial. To convict the Judge in an impeachment, requires a two-thirds majority.
Systemic or institutional tyranny
“The thin and precarious crust of decency is all that separates any civilization, however impressive, from the hell of anarchy or systematic tyranny which lie in wait beneath the surface.” Aldous Huxley
“The road to tyranny is paved with pebbles of silence, fear of others, division, lies, national myths of imaginary threats, and the coarsening of rhetoric.” Richard Flanagan
*When we fear the judicial system, it is tyranny; when the judicial system fears the people, we have liberty. *Apologies to **Thomas Jefferson * ***
Justices need to leave their egos outside the courtroom and simply do their jobs and look at issues disinterestedly and professionally.