Justice and Power #
Democracies can be under attack from many quarters, but in America and Canada judicial coup d’ etats appear to have succeeded.
David Cole writng in the NYRB claims:
Conservative justices have abandoned modesty, humility, and fealty to precedent, instead voting as a bloc to conform the law to their preferences.
We give unelected courts the power they have so that they can defend the rights of those who cannot protect themselves through the political process. Yet the Court flipped the script this term, consistently doing the bidding of the powerful while turning away the claims of the powerless.
While the American system is hopelessly hide-bound by politicizes alignments, the Canadian system can and should be salvaged by concerted actions of Parliament.
The more authoritarian; the less authority.
“Justice and power must be brought together, so that whatever is just, may be powerful, and whatever is powerful, may be just.” Blaise Pascal
Solon, in 7(th) century BCE wrestled power from the nobles and bequeathed it to the people through democratas – the power that originates in every one of us. The best way to be human, is to be ordinary; reject hierarchies and tyranny by putting power into the hands of the people.
All good governance entails bureaucrats, but Solon already realized that power corrupts, so officials who thought themselves too high and mighty were cut down by banishment or ostracism. Power structures within institutions know how to bury the misuse of power. However, we expect our democratically elected leaders to limit official power by providing adequate oversight and enforcing the laws of parliament that mandate openness, fairness and accountability.
History demonstrates the continuing domination of the powerful over the weak, unless curbed by responsible leaders.
In 55 BCE Cicero noted “the arrogance of officialdom needs to be tempered and controlled,….”
Virgil: “To impose the way of peace, you must spare the conquered and subdue the proud.”
Hamlet also cautions against “The oppressor’s wrong, the proud man’s contumely,.. the law’s delay, The insolence of office”.
Our social contract relies on Abraham Lincoln’s aphorism: The government of the people, by the people and for the people.
“When the people fear authorities, tyranny rules; when the authorities fear the people, freedom reigns”. Benjamin Franklin
Bismarck, in the 1862 proclaimed that “the great issues of the day are decided not through speeches and majority decisions—but by iron and blood (Eisen und Blut).”
However, he realised: “Power, to be useful, must be understood in its components, including its limits.
Powermongers, who exceed their reach, like Ozymandias are soon forgotten.
All British Commonwealth nations inherited the Westminster System, where Parliament represents the sovereign will of the people and all Public Servants are sworn to serve the public with Ministers responsible for their performance and the execution of laws.
Canada’s Chief Justice Brian Dickson P.C. #
acknowledged these guiding principles in 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*
This is a gold standard; romantic and idealistic. The effete pragmatic reality is just the opposite as revealed in the current Canadian thinking. Since the mid 1990’s, the Westminster System appears no longer operational and the whole belief in democracy become a wild illusion. Liberal democracy was created to serve the many, not to protect the powerful few.There appears to be a quantum and tectonic shift of sovereign power away from the people to the instruments of government. From genuine authority to an authoritarian mindset.
Through cognitive dissonance, institutions meant to serve us, become Orwellian; become master and enslave us. Officials too, no longer serve us, but seek to become our masters. Politicians of all political persuasions lack the spine to take on a bulwark legal industry, so too can be considered callously indifferent or culpably negligent.
When Chief Justices change, the culture changes. It may be an unfashionable point that politics matter: that by their actions and words, leaders powerfully shape the culture of institutions they preside over. Sometimes the difference is stark.
Consider the legacy of Beverley McLachlin. It is my considered view that under her watch, a sclerotic culture, emptied of its essential identity, its central idea, its core purpose slowly evolved, perhaps unintentionally. Her philosophies of “Conscious Objectivity” and presenting a unanimous front appear laudable, instead fomented arbitrary, solipsistic and collegial decision making.
It is always wrong to force Judges to have a united view. They are not a political party and fiercely independent intellectual thinking needs to be encouraged and rewarded. Groupthink leads to complacency. Diversity of opinion, diversity of ideas, helps make for a healthy society and court system. By McLachlin’s methods, the opinions of all Judges became “aligned”.
Her greatest failure was, in my opinion, a lack of will to curb the excesses of a rampant Judicial culture of unentitled privilege. English Common law’s greatest shortcoming is that it elevates precedence over statutory law, resulting in Judges thumbing their noses at the representatives of the people.
Opinions now count as much as evidence. Material evidence competes with quasi narratives for acceptance, justified by post modern appeals to the refusal of authority. The courts no longer appear to understands false equivalences; giving equal time and weight to self serving fabrications and distortions. The distinction between fact and fiction – reality of experience – and the distinction between right and wrong, true and false, no longer exist.
In postulating that all values are relative, the CJC advocates an extreme form of nihilism, subverting its core values, giving today’s judges the licence to act without compunction.
Regardless of how evil Shakespeare’s characters are, most of them have remorse, affecting their conscience. Judges feel at liberty to ignore morality and act unconscionably, resulting in our disenchantment
The courts should not so readily be hoodwinked into the Postmodern view that all views are equally valid.
Conrad Black maintains that McLachlin,
“ gave her war cry against the authority of Parliament and the provincial legislatures 14 years ago and no one noticed…. as McLachlin has emasculated the high court of Parliament and led a coup d’etat” (against democracy – the power of the people).
Judges were now emancipated from their previous duty to apply the law as written by the very legislators empowered by the electorate to make laws. Now, whatever the legislators did, judges were enabled and required to interpret the Charter as they wished and to decide if they judged the legislation adequate and acceptable. In doing so, judges should be guided by their own individual views, which would be laundered into objectivity by imagining how those views were best magnified by the Charter to apply to the issues before them. The result was still “the law, eternal, majestic.”
Black speculates whether it is down to the fact “that the *spouse of the Judge is a vocational shop steward" that the CJC gives Judges seemingly untrammeled interpretive licence. Having a cabalistic judicial system based on nepotism does not augur well for independent, disinterested and fastidious verdicts.
Some judges believe they have been awarded carte blanche, clinging to their unconditional authority; full discretionary power to make decisions based on nothing more than their intuition, caprice or personal inferential assumptions.
I don’t always agree with Conrad Black, but in this instance he appears spot on. The Movie Vice subtly illustrates this point when the camera lingers just long enough on The American Supreme Court’s motto: “Where the law ends; tyranny begins”, making a mockery of high handed judgments. The American Supreme Court must wear most of the blame for American society tearing itself apart due to its failure to curb the corruption around the Bush/Gore election and the rise of the NRA.
It is worthy of note that Black does not question McLachlin’s credibility, competency or integrity in jurispudence, merely the culture that developed under her watch. Her own performance is exemplary and unimpeachable. However, though her collegial, conciliatory approach to dissenting views and unanimous judgments may appear laudable, it can easily morph into groupthink, mono-think, a herd mentality and instead of collegiality an impregnable collabrative, collusive solidarity - a bunker mentality against the barbarians at the gates. Collusive cultures lose their reference points, becoming intimidating; collective power that menaces fair play. Collusive behaviour is characterised by conditioned blindness, narrow focus, moral fading - a bureaucratic mindset with no public interest in mind. In legal situations, the kinds of Power abuse that are intentional, premeditated and purposeful are usually perpetrated by Judges for ulterior reasons against lawyers or plaintives. In a world, increasingly moving to authoritarian governments, all democracies are always at risk of institutional power grabs. Systems designed to serve society turn on us and tend towards greater control and mastery. It happened in all great civilisations - even America. Why should it not happen to western societies such as Canada, Australia and other liberal democracies?
We should always allow for the high folly of high minds. The Best and the Brightest and The Smartest Guys in the Room often let us down denoting, an elite catastrophic failure that stretches from ancient times to the Crimean War, to WWI Generals, to Vietnam to Iraq to Wall Street – even the upper echelons should concede that they often get it spectacularly wrong and are also prone to serious misjudgments.
Call it effrontery, audacity, brazen chutzpah – whatever - some people in high positions prize their privilege above all else, often abusing their limited power by flouting the law of the land.
They say every town, every institution, every workplace, every home has its own unspoken caste system. For a minute, an hour, or days on end we’ll inhabit a small universe with its particular power structures and then bounce out into another. In some we are powerful, in some we are at risk. One minute you’re a rooster and the next you’re a feather duster. Outrageous displays of naked power plays do not reflect favorably on perpetrators and can in effect create impressions of celebratory ignorance and place the entire institution into disrepute.
Disclaimer: #
What follows is my impression of the difference between Canada’s and Australia’s governance over the past forty years. It is a work in progress. If you find any error of fact or perception, please inform the website @ nebo-lit1@usa.net. Thank-you.
My main thesis is Hegelian in its pendulum swings between the continuing dialectic of a thesis, its antithesis, and a compromise to a dominant synthesis becoming the new dominant thesis. Today the pendulum appears broken as it swings freely from one extreme pole to its polar opposite. Sometimes the owl of Minerva takes flight, Apollo rules, sometimes the dogs of Mars are unleashed, other times the goat of Bacchus/Dionysus rampages. Complacency can lull us into “a stony sleep… vexed into a nightmare” snug in the arms of Morpheus.
Australia in the 1970’s was emerging from 23 years of downy sleep; the depths of stagnation, described by Evan Whitton as a “stench of corruption like a rotting carcass in a stagnant pool rising to the top, rolling over and slipping below the surface again”, while Canada enjoyed the status as a paragon of good governance, a beacon of hope and a model for reform in the world. Today, the situation appears antithetical - reversed.
Public life routinely features sensations, figures in whom people invest great expectations based on nothing more than a captivation with their radiant personas, like Macbeth, Mugabe, Tony Blair, Aung San Suu Kyi, ….who, promise much but deliver little, proving that suffering for the cause of freedom is no guarantee of wise governance, and that today’s victims are likely to be tomorrow’s persecutors.
Leaders for whom “personal popularity” matters more than the fate of their own institution or country can become profoundly indifferent to judicial and moral principle.
Beverley McLachlin’s stellar career perhaps most closely mirrors that of Macbeth; early adulation and acclaim, then slowly sinking into an entrenched culture of lofty unaccountability. Perhaps she, like Lady Macbeth, believes in exceptionalism - Chief Justices, have achieved a position “where none can hold us to account”, thus, like Trump, above the law. Lauded for having a “steel trap legal mind”, perhaps it snapped shut in her bouts with Harper. There are many highly respected Judges, but under her watch, it became my impression that their authority became challenged and eroded by many questionable “Humpty Dumpty” decisions based on “who is to be master - and that is all!”,
Any arbitrary and capricious judgement invites scorn, derision and even contempt; but demands censure and coercive rectification.
Legal journalism plays a vital part in all healthy democracies. I detect a growing despair in most Canadian media. If Christie Blatchford’swritings, (knowledgeable, incisive, authoritative, evidentiary and full of passion) prove anything, it is that social change can’t rely upon just Journalists to influence unresponsive governments or shameless but shameful perpetrators. Journalists expose corruption but little changes. The public must give up waiting and force progress upon recalcitrant governments, public servants and the Supreme court. It takes a concerted effort by all citizens. If something is wrong, it’s wrong. We have to call it out for what it is. Canadians are often depicted as “nice”, passive and gracious, but in my experience they are extremely astute - awoke to the dangers towards democracy - not easily duped. We need outrage, yet our stocks of outrage are bottoming out.
At what point on the Richter Scale do we give up? A robust democracy demands we just have got to go on fighting. Don’t ever give up….
It is my considered contention that the laws of the Canadian Parliament are not being respected or enforced. Rona Ambrose’s bill to make sexual assault training for Judges mandatory was passed unanimously, but did not go far enough. Judges appear to require schooling and training in a few other areas as well. Judges need to demonstrate real life knowledge. Family Court arbiters need to know about differing family dynamics in nuclear families and large sprawling virtual cross generational ones. All Judges should stay up to date with the diagnosis, prognosis and therapeutic treatments for patients with Mental Health problems.
The CJC is commissioned by the Canadian people to uphold standards. We need a full cross party Parliamentary to investigate whether complaints to the CJC are given due and adequate consideration. It would go a long way to restore our trust in our most prestigious institution.
In 1972 Pierre Trudeau legislated for stronger Judicial oversight; in 2019 Justin Trudeau’s government cravenly weakened that oversight.
Chris Selley of the National Post writes:
“Parliament is indeed the proper place for the big decisions to be made; that justices are not infallible or above reproach; indeed, that they are fallible human beings who sometimes get things totally, bizarrely wrong, to the detriment of us all”.
Janet Albrechtsen claims:
“the real decision-maker in Canada is a judicial aristocracy, an unelected, unaccountable and unsackable body that treats elected parliaments with disdain, if not contempt”.
The full weight of Parliament needs to be brought down on the Canadian Judicial Council to corral, bit harness and rein in a culture of routine inaction, inadequate judicial oversight and systematic impunity. It’s been an era of toxic egos … Too many judges have put themselves and their institution first, and not the common good. Hubris needs curbing. Judges must be aware of the limitations of their inordinate discretionary powers.
As Tacitusput it ” misdeeds, once exposed, have no refuge but in audacity”. At what point does audacity become chutzpah, defiance, malfeasance?
The Philosopher, John Gray blames Post Modernism,
for creating the most radical disillusionment of history of the world, even greater than existentialism. In postulating that all values are relative, in effect it advocates an extreme form of nihilism, subverting all core values.
This gives today’s authorities the licence to act without compunction. Regardless of how evil Shakespeare’s characters are, most of them have remorse, affecting their conscience. Modern leaders feel at liberty to act unconscionably.
How does the Canadian Judicial Council respond to complaints? #
Judges are not there to make the law, but to adhere to the laws made by the sovereign people’s representatives - parliamentarians.
It is a mandatory requirement by statute that the CJC must investigate if there is a reasonable perception that a judge has behaved in a way which constitutes a significant departure from accepted professional standards; and that such behaviour has placed the reputation and credibility of the entire court system at risk of harm.
The writer’s personal experience warrants attention as it appears symptomatic of an endemic problem of Judges not ruling on the basis of ascertainable facts. In my opinion it is a cringe-worthy case that failed to exhibit basic legal procedures; elementary processes of determining or establishing the facts, displaying an astonishing lack of awareness of the rules of evidence, extended family dynamics or any understanding of the diagnosis and prognosis of schizophrenia. It failed to display any curiosity for factual evidence or any appetite for accuracy in reflecting reality. It truly invited scorn, derision and contempt by those who knew the facts.
Despite providing the CJC detailed, definitive and damaging concerns regarding a perceived perversion of justice in contesting a Will, after some 4 years, the only acknowledgement I received was;
Private and Confidential correspondence addressed to the Judge concerned.
Justice Shawn Greenberg
Thank-you very much for your letters concerning complaints made by Mr Charles Klassen.
I enclose for your information a copy of the letter I have today sent to Mr Klassen closing the Council’s file on this matter.
Signed
Yours sincerely, Norman Sabourin Executive Director and Senior General Council
That was it! “No more to build on there”. Like Oliver I wanted more. Despite many appeals - nothing!
At least we can’t accuse The Supreme Court of being overly transparent or giving away any trade secrets. Not too much government time or ink was wasted on it. Yet it does appear as if the CJC has shrouded itself in an obscure veil of Kafkaesque secrecy attempting to foster a sense of impotence and despair.
The most galling aspect was the manner in which our methodically, rigorously researched and meticulously documented family stories appeared to be purposefully misinterpreted or simply ignored to reach foregone or desired conclusions. Its bizarre findings cavalierly trampled on the recorded sacred memories of our honored forbear’s enduring, devoted duty of care. The most incredible, elliptical and unsubstantiated assertions were uncritically accepted by a credulous court, even when contradicted by well founded concrete evidence.
Article 12.1 of the CJC’s Procedures is clear, explicit and unequivocal:
“The Executive Director must inform the complainant by letter when a matter is dismissed or concluded by the Chairperson, and indicate the basis on which it was dismissed or concluded”.
Is the CJC in contempt of Parliament? Is it flouting the laws of the Canadian people? I do feel aggrieved. I feel as if my inherent birthright as a Canadian citizen and tax payer is being deliberately dismissed, treated with callous indifference and violated. More importantly, most of my extended family have lost faith, confidence and trust in Canada’s system of justice. Does that not matter?
Does the CJC take its publically funded obligation seriously or merely appear to excel in offending, intimidating and dismissing all complaints in an attempt to delegitimise dissent to protect their own? Perhaps they could do with training in simple manners. It could start with being true to its mandatory requirement of response and the proclaimed values of Justice, adhering to its vestigial purpose of upholding exacting Judicial standards by showing the moral courage necessary to see complaints as opportunities for improvement and to admit failures as a badge of honour.
Instead of upholding proper standards, The Canadian Judicial Council seems to engage in shadow boxing with occasional knock-out blows.
Lori Douglas, Frank Newbould and Michel Girouard, are three recent Judges who have been investigated by the CJC for personal matters that merely had the potential of affecting their performance, while real cases demonstrating declining standards of decision making, causing greater self-inflicted reputational damage to the profession are tacitly condoned. The first two have resigned leaving us, in my opinion, with the loss of two conscientious judges whose promising careers were wantonly but needlessly destroyed.
Each displayed human traits, apparently not tolerated by the CJC. History demonstrates repeatedly, monotonously and depressingly that the last thing we need is dehumanised or inhumane Judges. We need empathetic, intellectually independently thinking Judges who share our common humanity. Australian Judges exercise their rights to express their opinions by writing books on history or newspaper articles on current topics. We value their insights but don’t have to agree with them.
In the most recent CJC investigation, according to co-founder of Democracy Watch, Duff Conacher, for Vic Toews, “To face no penalty at all, or sanction, is a questionable ruling.”. But then foxes investigating the presence of blood in the hen house are hardly likely to implicate one of their own.
This raises serious questions about — or, rather, confirms — how out of touch with reality the CJC is. How deeply and broadly and limitlessly their vanity clouds its assessments and judgments. How dangerous that is for all of us. In a mature, full democracy, no one gets a free pass, regardless of high and mighty you are. You get the same scrutiny as everyone else.
Canadian public servants appear to be taken with their awesome, bulwark and coercive power to peremptorily and majestically close files. In another case over an application for a new Canadian Passport, Sydney bureaucrats were determined to put every impediment in the way and kept threatening to close my file unless I produced an airline ticket. Thankfully a responsible and responsive immigration Minister, THE HONOURABLE AHMED HUSSEN intervened and the bureaucrats grudgingly complied.
It didn’t used to be that way; in the 1970’s Australian governance was quietly emerging out of a cultural, intellectual and economic backwater, its entire legal system at a low ebb; in 1975 it descended even lower when a Governor General, a Chief Justice, his deputy, the opposition leader and it appears the Queen, colluded in a coup d’etat against a popularly elected Government. As well Australia’s public servants were expected to be rude, impersonal and unresponsive while Canadian authorities were highly regarded and the Canadian Consulate a pleasure to deal with.
In 1971, Pierre Trudeau commissioned two institutions to bring Canada’s Judicial system into the 20th century, a Law Reform Commission and the Canadian Judicial Council. Did both turn out to become white elephants?
Harper, who abolished Pierre Trudeau’s 1971 Law Reform Commission, was rewarded by having his legislation rejected by an activist Supreme Court of Canada. While we may have applauded it at the time, this sets a dangerous precedence since neither had a clear mandate. As Nietzsche noted," the greatest risk of fighting monsters, is becoming a monster".
Did Canada’s Supreme Court become that monster?
Perhaps it believes that in order to uphold the law, it can stand outside the law?
Humpty Dumpty decision making appears to have trickled down the hierarchies and lower ranking Judges felt entitled to adjudicate using arbitrary and capricious methods against the spirit and intent of statutes adopted by the people’s representatives.
Conversely today, many of Australia’s Judges are considered National Treasures and its civil service personalised due to “quality assurance incentive” and “key performance indicator” programs. Australian bureaucrats fall over themselves in an effort to assist and court the public for favourable reviews while Canadian authorities appear to luxuriate in their new found unchecked power.
Just when does a wave of revelations become a tsunami? To shift metaphors, it may not be a case of a few bad apples, but an entire orchard blighted with pestilence. Camus wrote in his great novel, The Plague, “on this earth there are pestilences and there are victims – and as far as possible one must refuse to be on the side of the pestilence.”*
What are the tipping points for systemic abuse and failure to be acknowledged and addressed? The Harvey Weinstein culture of abuse was graciously accepted for at least 80 years. Pedophilia in the Catholic Church was evident for at least 900 years, yet met with dignified silence until recently. What triggers reform?
Credibility and respect for the court is seriously strained by courts overruling jury decisions with arrogated presumptions of solipsistic vanity, as suggested by Justice Karen Simonsen in the Candace Derksen Case. Most Juries are capable and take their duties seriously. Since universal education, the general public is much more cluey than in Medieval times. A strong perception of Judicial disdain for the Jury decisions implies superior appraisals by Appeals Judges. These may not reflect reality.
Recently in a similar Australian case, where a jury found the defendant guilty of murder, an appeal court arbitrarily downgraded it to one of manslaughter demonstrating a towering condescension towards Juries of ordinary Australians. Australians were so enraged, thousands marched on the street and the High court reinstated the original Jury decision. It is also uplifting when other Judicial systems display a capacity and willingness to self - correct as the recent South African court did in the Oscar Pestorios case.
Australia does not have a Bill of Rights or an official watchdog on Judges, neither does it have a Supreme Court, yet its officials appear to be held to a greater standard of accountability, by its people, than Canadian Judges.
It is worthy noting that Australia’s not having a Supreme Court, (it is called the High Court) is tacit acknowledgement that the highest court in the land is the court of public opinion through its representatives in Parliament.
Since 1971, the establishment of the CJC, few Canadian Judges have been found culpable, yet from the mid 1980’s, several Australian Judges had to front Parliamentary inquiries. At least two went to jail. This appeared to focus Judicial attention on getting the facts right. Is there an implication of higher Canadian rectitude or probity?
According to Australia’s Robert French,
“The judicial process is the ultimate determinant of interpretation of disputes”, giving the Courts the power of the final say.*
It is imperative that the confidence, faith and trust in this process be justified. Courts simply rejecting hard evidence, doubling down, becoming more trenchant when faced with disputed facts.do not inspire respect. High handed decision making ultimately diminishes our faith, confidence and trust in officialdom, undermining the very credibility, authority and legitimacy of the entire system by a denial of mutual respect.
A rare insight from a politician: #
“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.
The greatest danger is that some Judges no longer see themselves as arbiters between right and wrong, but as mere adjudicators of debating skills, or critics of theatrical rhetoric between skilled highly paid advocates. Judges should not be easy prey for eristic arguments, dark legal arts or the finery of the law. Whatever you do, you should do well; but it is even more important to do some good.
The five basic pillars of ethical obligations of all decision making are:
- full discovery of facts,
- the accurate testing of assertions,
- fair balance of presentation,
- honest appraisal of evidence, and
- conclusions based on substantive foundations.
Richard Ackland claims that Michael Kirby is celebrated as one of Australia’s most distinguished Justices, with tributes, including honorary degrees from 24 Australian and overseas universities, and has nine medals and honours ranging from a Companion of the Order of Australia to National Trust Australian Living Treasure. But for most of his career he was a solitary and isolated member of the High Court.
Greg Barns writes: “Michael Kirby has always unambiguously stood for the proposition that justice is about more than technical interpretation and slavish following of precedent – and is in fact about ensuring humanity is enhanced.”
These founding principles underpin the primary purpose of the court system noted by all original architects including, Solon, King Richard I, Edward III, Richard III and Napoleon. They are there to tame wild justice that was tearing apart early civilizations and prevent families feuding.
Today I could mention several Australian Judges held in high esteem. Many are widely acclaimed for their noble missions. Peter McClellan, The chief commissioner of Institutional Child Abuse is highly revered. Many others are celebrated for their significant contributions to improving Society; William Dean, Mary Gaudry… Judges instrumental in conducting fearless corruption inquiries include: The Honourable Justices: Sir Lawrence Street, Ian Temby, Tony Fitzgerald, James Wood. These venerated Judges have gone a long way to restoring Australian’s faith and confidence in a vital institution.
Sir Gerard Brennan, is concerned about judicial conduct that so materially undermines any features that the institutional integrity of the relevant court is impaired.
A Separation of Powers
Axiomatically, the legitimacy of the exercise of judicial power depends on its officers being above criticism. It is, therefore, a fundamental assumption of the Constitution that federal judicial power must be exercised impartially and Courts, in our system, elaborate principles of law in the course of resolving disputes. The power and the prerogative of a court to perform this function rest, in the end, upon the respect accorded to its judgments. The citizen’s respect for judgments depends in turn upon the issuing court’s absolute probity. Judicial integrity is, in consequence, a state interest of the highest order.
Appearance, no less than the reality, of independence is essential. The judiciary, the least dangerous branch of government, has public confidence as its necessary but sufficient power base. It has not got, nor does it need, the power of the purse or the power of the sword to make the rule of law effective, provided the people whom we serve have confidence in the exercise of the power of judgment.
Sir Gerard Brennan, ‘Judicial Independence’ (Speech, Australian Judicial Conference, 2 November 1996)
I would be happy to learn about corresponding Canadian Justices. We need to acknowledge and celebrate the good ones, but name and shame the bad ones.
Justice is achieved when citizens live in an environment in which all, are treated equally and accorded dignity and mutual respect.
Power, in a liberal democracy is controlled by efforts made to define and limit power, often by means of checks and balances.
Mutual respect, equality and equivalency (one = one) are the hallmarks of an authentic Judicial System and a mature democratic society.
The word ‘democracy’ has its origins in the Greek language. It combines two shorter words: ‘demos’ meaning whole citizen and ‘kratos’ meaning power or rule of the people. Mutual respect, equality and equivalency (one = one) are the hallmarks of an authentic democratic society.