Lawyers' Christian Fellowship

‘WHO JUDGES THE JUDGES?*

A paper delivered by the Hon. Justice R W GEE
to the Lawyers* Christian Fellowship
on Tuesday, 25 October 1994

The topic that I have been asked to speak about is one of current interest because of increased public scrutiny of judges and the legal system. I want to challenge you today to focus on the ultimate judge. As well as looking at challenges to judges to adapt to changing social expectations, I wish to challenge you and myself and us and society to adapt to unchanging Divine expectations.

Judges are expected to behave according to certain standards, both in and out of court, because they form a particular group in the community and comprise a select part of an honourable profession. They are entrusted day after day with the exercise of considerable power, whose exercise has dramatic effects upon the lives and fortunes of those who come before us. It is therefore a not unreal social expectation that we should maintain confidence in those expectations in all ways.

In the case of the Christian, particularly who happens to be a judge, it is well to remember that all life is sacred and there is no division between sacred and secular. Notwithstanding the increased calls for the ‘privatisation* of conscience, of life and witness, our Lord knows no distinction between public and private and requires a Christian, including a judge, to be salt and light not only within himself but outside himself and in the community, and if the community does not like its sore points being rubbed by salt and the light of Christ shed into the darkness of its dealings, then inevitably there is for the Christian, including the judge, a rocky road.

Some expectations of judges, which are social and which are Christian, have much in common. The advice of Jehosophat to the judges he appointed in Israel long ago, as reported in 2 Chronicles Chapter 19 verses 5 to 7, when you analyse it, it is remarkably similar to the social expectations of judges today. The requirements as set out by the chronicler are as follows:

(a) consider carefully what you do;

(b) let there be no bribery;

(c) let there be no partiality;

(d) let there be no injustice.

The office and the person go hand in hand. It is the person who enhances the office, not vice-versa, and it must be so for the sake of the office.

There are other requirements, which I will come to later, but it will be seen that the requirements as I have so far set them out are much in common with the expectations of society, requirements for example, that a judge listen to both sides, that he not attack other judges or other parts of the judiciary, that he not adjudicate in a case where he has a financial interest in the result, that he does not headline hunt, that he does not use the court and its trappings for personal advantage, that he fails to turn up for duty, that he does not exhibit bias or prejudice, including racial, religious or ethnic bias, that he be careful with general community involvement, particularly in relation to matters of public controversy.

In this connection it is relevant to refer to the Kilmuir rules which were contained in a letter by the then Lord Chancellor written to the Director-General of the BBC on 12 December 1955 in response to a proposal that Senior Judges participate in a series of radio programmes about great judges of the past.

The essence of those rules is that it is important to keep the judiciary insulated from the controversies of the day. The utterance which a Judge makes in public, except in the course of the actual performance of his judicial duties, must necessarily bring him within the focus of criticism. Lord Kilmuir went on to suggest that as a general rule it was undesirable for members of the judiciary to broadcast on the wireless or appear on television, except for charitable appeals.

That situation, of course, has in many respects changed and the Judiciary has become much more exposed publicly since that date, and indeed our own Chief Justice has appeared on television. I am prepared to say, however, in relation to him that it was only in relation to matters arising out of the work of the Court and the fact that by the very terms of the Family Law Act the administrative responsibilities, as distinct from the exercise of judicial office, are vested in him.

Nonetheless, notwithstanding these changes, and, perhaps, because of them, it is a fact that, particularly in this day and age when community expectations of judges are perhaps greater than before, we as judges should be all the more vigilant to be at arms-length from situations in which our position could be misunderstood, bearing in mind that there are an increasing number of people, particularly dissatisfied litigants, and also in the media, who are not only ready and willing to put the wrong construction upon what we do, but also able to broadcast it in a way which can only be detrimental for the office of a judge as such.

In some respects these social expectations are unreal because the community expects perfection in those who hold high office, but not in itself and the media, minority groups, and politicians find it easy to ‘scapegoat* such people, but are not ready to receive the remarks such as Jesus made, ‘Let those who are without sin among you cast the first stone* (John 8:7 RSV), or the remarks in the Sermon on the Mount about removing the log from one*s own eye before one criticises the mote in the other person*s eye (see Matthew 7:3-5 RSV).

Certainly it is important that the tenure of judges be sufficiently secure so that they cannot be arbitrarily removed. Only if they have that security of tenure will eminent members of the profession be enabled to take judicial office, even if that involves sacrifice, but take it with the expectation that their security will be preserved.

There have been calls from time to time for the establishment of properly appointed judicial bodies to vet complaints in respect of judges before the ultimate body charged with dismissal, namely Parliament, is called upon to do so. It has been pointed out that legislatures do not have the time or ability to undertake the role of a judge in a formal court proceeding due to the lack of any device for the screening and investigating of complaints. A case of judicial misconduct is not likely ever to reach the attention of the legislature unless it involves flagrant corruption. It has been further pointed out that the widespread publicity that must accompany such proceedings would not only threaten the reputation of the individual judge and hence the judiciary, but inject a strong partisan element into the proceedings as legislators came under pressure to weigh constituency sentiments and other political considerations in casting their votes.

It has been suggested that it would be desirable for the various Parliaments in Australia to have procedural Acts which would provide a ready-made procedure for the appointment of a commission to investigate alleged misconduct against a judge and to report its findings to Parliament. In the view of some, the procedure eventually prescribed by Federal Parliament in setting up the 1986 Commission of Enquiry was impeccable in its appointment of three retired judges to enquire and to advise Parliament of their opinion on the vital question of misbehaviour, and, in the view of some, it should be a model for the setting up of any future commission.

Whether that be so or not, to quote Walter Harrison, The Legal Profession in Queensland, Bbane, 1948, 2nd Edn 1984, pp.46-47:

‘Judges are human, and like other men they will perform their functions better if they are not vexed by thoughts that their competence may be questioned or their integrity suspected It is very important that criticism of the bench should be withheld except where it is plainly called for and beyond doubt justified. Lawyers owe a special duty to be cautious in this respect They should repel any insinuations made by laymen against the integrity of a judge, unless of course, if some scandalous case should occur, they unfortunately have good grounds to believe the imputation to be correct. Even so, they should not encourage talk of this sort, which is only likely to lead to an unjustified lack of confidence in the bench as a whole. This is particularly important in Australia today, where the democratic principle of the equality of men shows a tendency to be perverted into an eagerness to disparage the holders of high position, an unwillingness to recognise intellectual or moral superiority even where it really exists. Above all, lawyers should strongly resist the temptation to excuse the loss of a case by attributing it to the incompetence, bias or other defect of a judge, or to countenance a client*s suggestion to the same effect.*

With those remarks I would respectfully agree.

I would add my own comment that now that the democratic principle has become that of equality of men and women, that should not be perverted into an eagerness to disparage the holders of high positions on the basis of some perceived gender bias as a result of remarks which are taken out of context, without regard to the context, and with reckless indifference to the context.

Nonetheless, bearing in mind the relentless and ruthless exposure to which the Bench is now subject, the only way for judges to preserve the right of privacy, a right so often forgotten, is to guard jealously every public word as well as every public action. The advice of the Apostle James: ‘Everyone should be quick to listen, slow to speak, slow to become angry* (James 1:20 RSV) is particularly relevant.

I return to where I began. The advice of Jehosophat to the judges he appointed in Israel long ago referred additionally to matters which he regarded as fundamental. They were as follows:

(a) The judges he appointed were not judging for men but for God;

(b) God was with them whenever they gave a verdict;

(c) The awe of God should be upon them;

(d) There was to be no bribery, partiality or injustice, because God is like that.

Ultimately God judges the judges and everyone else and the challenge to them is to adapt to the unchanging divine expectations to that end. As Paul reminds us, we will all appear before the judgment seat of Christ; that includes judges, and as Jesus reminds us, to whomsoever much is given of them is much required. We need to recover our awe of God, that is to say, a wholesome awareness of His holiness and purity of character, His hatred of sin, His passion for goodness, impartiality with regard to sin, His love as manifest in His concern for the salvation of humankind through the sending of His Son to die upon the cross of Calvary.

We also need to recover the fact that our God is a relational God and that other centredness is the thread that runs throughout the universe, and is the thread upon which the universe is spun. The members of the Trinity are united by a selfless concern each for the other. Although they bear the eternal name ‘I AM*, Each of them puts the Other before Himself, so that

although They are diverse, being Three, They are yet One. The mathematical equation if you will have it is not: 1 + 1 + 1, for that equals 3, but: 1 x 1 x 1, which equals 1, thus setting forth the intertwining persons of the Godhead as one and in a unity of which the Christian Church, itself diverse, is expected to be a reflection because it is the body of Christ. God needed not to create us, but He did out of sheer pleasure, to share Himself with others. Accordingly self-centredness violates the Divine design of the universe.

Therefore, the God whom we are to be like in showing no partiality, no bribery, and of whom we are to stand in awe, is the motivation for us to consider carefully what we do, is also the God of relationships, and requires that we be sensitive, compassionate and understanding, and act upon the basis that society is built upon relationships. In our weighing of law and justice we should ensure that in exercising justice we do not degenerate into sentimentality because we ignore the law, but at the same time, if we consider only the law, then it becomes legalistic and rightly demands a justice which is concerned fundamentally with relationships, their brokenness and a desire that they be restored. That is the God whom we as Christians worship, that is the God who says all life is sacred, that is the God who longs that those of us who judge, have judged or will judge stand in awe of and act for when we judge.

But let me note the last thing which Jehosophat reminds the judges of, and this is itself a word of encouragement:

‘He us with you whenever you give a verdict*.

What a comforting and strengthening thought, that while we are in court, by the presence of His Holy Spirit in our midst, never leaving us nor forsaking us, unless we push Him away, He can give us the sensitivity to counsel, to solicitors, to litigants, to unrepresented litigants, to difficult litigants, and He, whom God has made unto us wisdom, can give us the wisdom in discerning the issues to be tried, evidence to be weighed, the assessment of witnesses to be formed, and the conclusions to be reached, and not only that, but the manner in which they are expressed and the very words that are used, for our God is great enough for that (see 1 Corinthians 1:30, James 1:5-8 RSV).

Let us therefore stop making Him in our own image; rather let us allow Him by His Spirit to mould us into His image, for that is His will for each one of us, and in that will all things, however dark and drear, will work together for good (Romans 8:28-30 RSV).

Religious
Freedom

the need for
a national
agenda

Patrick Parkinson
Professor Law
Sydney University

29 October 2010
 

Click here for
more details