The role of the judiciary is to judge

There has been much wailing and gnashing of teeth over Dame Sian Elias’ remarks about the prison muster. Nevertheless, this is what Chief Justices (and their equivalents elsewhere) do from time to time – make pronouncements about the law and the state of the justice system, which carry no policy mandate but tend to get people talking.

I would note that the speech was much broader and more considered than ‘let the prisoners go free’ as it has been dramatised. But that Dame Sian has made a pronouncement so far out of step with government policy and public consciousness demonstrates either a remarkable sense of personal responsibility for the justice system or a desire to legislate from the bench.

There are three ways to slice it:

  1. The judiciary is right to involve itself in this sort of thing and you agree with the position taken
  2. The judiciary is right to involve itself in this sort of thing and you disagree with the position taken
  3. The judiciary is wrong to involve itself in this sort of thing, and should stay the hell out of wider matters of justice regardless

I’m the first, with Toad and most commenters on Eddie’s post on The Standard. Labour Justice spokesperson Lianne Dalziel is too. In another case I might be the second. Danyl Mclauchlan seems to be either in the first or the second; Idiot/Savant and Bomber are clearly the first; Madeleine Flannagan, herself a lawyer, seems somewhat grudgingly to be in the second camp. Peter Cresswell definitely is.

But it’s tricky; the third is a cover for the second. I think Simon Power and Garth McVicar (along with DPF and some stalwarts of the KBR hang’em-flog’em brigade) are taking the third position for rhetorical purposes when, if they were honest, they’d be defending the right of the judiciary to participate in NZ’s discourse of criminal justice but disagreeing with Dame Sian’s argument in this case – the second position. Dean Knight points out that, when it suits, the government does actually consider the judiciary’s views as integral to justice policy.

If the particulars of the Chief Justice’s speech had been different, I reckon they’d be singing from a songsheet other than the one which reads ‘butt out, you lily-livered liberal panty-waist’. Perhaps the one which reads ‘I disagree with your position but, as the head of NZ’s judiciary, you are entitled to take it’.

The flipside, I suppose, is whether those of us who agree with Dame Sian’s general position today would be supportive of her right to take it if we disagreed. We should be; all of us.

Edit: Andrew Geddis is in the first position; Stephen Franks is in the second.


11 thoughts on “The role of the judiciary is to judge

  1. Lew said:

    I’m the first, with Toad and most commenters on Eddie’s post on The Standard.

    I’m actually only marginally in the first group Lew, at least as far as the amnesty is concerned. I think it is far better to not send people who pose no significant threat to society to prison in the first place. People convicted of property crime other than really serious fraudsters and victimless crimes like drug possession simply shouldn’t be there.

  2. I think I’m also on the margins of the first group. I support Elias’ right to speak on the matter, but… I believe we should not have prisons, and that if we do have prisons we should not use them in the way that we do, and that if we have them and use them this way we shouldn’t imprison most of the people we currently do. OTOH if we do have prisons and we do use them the way we do and we do imprison everyone we currently imprison then we should have early release amnesties.

  3. I’m in the first group too. Most of those bleating about the inappropriateness of Elias’ comments are not people I’d take constitutional law advice from. For example, Act MP and former employment lawyer David Garrett. (Actually, I’m not sure after his “watercooler” comments recently I’d have been rushing to him for employment law advice either)

    The Law Society has come out in defence of Elias. And it’s actually not that uncommon for judges to make statements about matters of law and criminal justice. They are experts, after all.

    It’s a shame the atmosphere surrounding law and order issues is so toxic that the proponents of sensible suggestions are vilified.

  4. Toad, Anita,

    You’re not fully in behind Dame Sian’s comments – that’s understood. The point wasn’t really about the merits of the speech, it was about the tension between principle and practice. I’m most interested in the people who disagree with the particulars of the speech, but who aren’t attacking the fact that such a speech was given. There seem to be rather few of them.


    Quite right. It’s unfortunate that this group includes the Minister of Justice.


  5. After the lawyers submission on Election Campaign Law, I now view them as a “class” advocate (seeing the purpose of law to restrain the populist politician on the one hand and to protect the interests of those with the most money on the other) – excepting when acting on “legal aid” for those outside this class.

    So I guess here the attempt is to restrain the right wing populist (law and order politicans) to save the class from the (tax bill) cost of imprisoning more and more people.

  6. Anita, I guess SPC must mean the Law Society’s submission on electoral finance reform. But my objection is to the next bit:

    I now view them as a “class” advocate

    This is a peculiarly blinkered view. Do you just not accept the premises of liberal democratic pluralism? At the risk of repeating myself, class ain’t everything and everything ain’t class.


  7. SPC,

    Do you mean this? If so, why? I disagree with about 90% of the contents, but I’m not sure I see it as tarnishing all lawyers with a particular class wars agenda.

  8. Classic Lew, a truly singular line taken by the Law Society and any dissent, calling it like it is, is from someone not accepting “liberal pluralism”. Drink Tui’s?

  9. Anita, the Law Society viewpoint is as “effectively” ideological as Roger Kerrs view on how we can get “greater productivity and higher wages for workers” – in the sense of being for the rights of the same few (capitalist/classist) rather than the equal rights of a many (both of which move towards building a permanent capitalist class elite).

    They both want to limit money in the hands of elected government and maximise the amount of money and power in the hands of the few.

    Lawyers are free to dissent against their Society advocacy …

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