Judges excempt from Bill of Rights

Interview with Professor Abimbola Olowofoyeku

Professor Abimbola Olowofoyeku is Director of the Centre for International and Public Law at Brunel University in London and former head of its Law School, as well as member of the Advisory Board for International Journal of Law and Management. His primary specialisations are in the areas of public law, taxation and torts and he is renown in the area of judicial immunity, having authored the research book “Suing Judges: A Study of Judicial Immunity” in 1993.

Professor Abimbola Olowofoyeku is Director of the Centre for International and Public Law at Brunel University in London.
Professor Abimbola Olowofoyeku is Director of the Centre for International and Public Law at Brunel University in London.

Professor O has given kiwisfirst an interview on this topic which has become the subject of some consternation in New Zealand recently.

Q: The New Zealand Supreme Court very recently ruled in Attorney General v Chapman that the common law protections of judicial immunity render the remedies under the New Zealand Bill of Rights Act 1990 for elementary rights breaches by NZ judges nugatory. Chapman was a criminal defendant who fell under the Privy Council decision Taito v Q, which determined the NZ Court of Appeal was engaged in systemic breaches of natural justice by preventing statutory rights of appeal under the guise of case management decisions. This ruling suggests to me that judicial immunity is fundamentally at odds with elementary human rights protections provided by constitution, statute and international conventions. Would you agree?

A: Not necessarily. Please let me elaborate. Complete immunity, which admits of no real exceptions, coupled with an absence of any other avenue of redress, is very problematic and undermines the principle that every right should also have a corresponding remedy. Where the right involved is a fundamental human right (e.g., the right not to be deprived of liberty without due process), then I would agree with your proposition. However, where there is an adequate alternative remedy (i.e., other than suing the judge personally) the situation would be different. No law can completely and permanently prevent violations of rights. The best that the law can do is to provide redress where such a violation has occurred. Where the law can provide a remedy (e.g., against the state, whose judicial power the judge is exercising) then there is no conflict. While the aggrieved litigant might derive greater satisfaction in securing redress from the judge personally, such vengeance or retribution should be a secondary concern. For me, the primary concern is that the law should provide redress in appropriate cases. Appropriate redress in damages might be against the judge personally in the context of a qualified judicial immunity (if a case for denial of immunity is made out), or, against the state in the context of absolute immunity (again, where it is established that the litigant has suffered a genuine legal wrong). Appropriate redress might also lie in the kind of compensation scheme that exists in many countries for victims of miscarriage of justice. I use the terms ‘redress’ and ‘remedy’ here in a very limited sense, to refer to redress for the consequences of the judicial error (rather than redress that only leads to a reversal of the judicial error itself – either on appeal or other review).

Q: In your opinion, which countries in the world have done better in reconciling human rights protections against common law judicial immunity, and how?

A: The Privy Council held in Maharaj v AG of Trinidad and Tobago that a primary public law liability can attach to the state in cases of irreparable injury caused by violations of constitutional rights by a judge. By that token, I think that Trinidad and Tobago fits the bill. So would any country that accepts the reasoning of the Privy Council in Maharaj (this kind of liability also exists in some continental European countries, which are, of course, not common law countries at all). Maharaj, as a Privy Council decision, should carry great weight throughout the Commonwealth. A Canadian decision (R v Germain) seems to indicate that the Maharaj type of liability can apply in Canada in cases of infringements of the Canadian Charter of Rights and Freedoms. Apart from this, I am not aware of its adoption elsewhere. The jurisprudence of the European Court of Justice and of the European Court of Human Rights also indicates that state liability may be available in respect of injuries caused by judicial action. This would bring a number of common law jurisdictions (e.g., the UK and Ireland) into the fold.
[editor’s footnote: The New Zealand Supreme Court rejected the Maharaj reasoning in its Atty General v Chapman decision last month]

Q: In respect to absolute judicial immunity, you mentioned several times in your book how this struck at the very principle of equality under the law, as well as the legal incongruity of having a legal right without legal remedy. Is there any other area of the law where such inequality or lack of remedy exists?

A: Yes. Immunities are widespread. Some are qualified (e.g., for barristers and other advocates), but the sovereign and parliamentary immunities, for example, can be just as formidable as judicial immunity.

Q: You quite cogently argue that ‘qualified immunity’, which does not cover malicious or reckless conduct by a judge, is the only one that is sound and convincing in your opinion. Because malicious and reckless conduct in any profession other than judges has never been labelled a threat to independence, this begs the questions of why absolute immunity is so common and qualified immunity is not universally accepted in legal systems. Despite the legal window dressing which typically accompanies rulings of why absolute immunity is necessary, is this not fundamentally a case of judges who are used to marking their own papers not wishing to be held accountable for personal, as well as professional, transgressions?

A: I have always argued that there is no convincing rationale for absolute judicial immunity. After more than a quarter of a century as a student of the subject, my view has not changed. While judges may not be consciously engaging in self-protection, there is a strong temptation for them to maintain the status quo, and little incentive for them to precipitate change.

Q: Where societies accept that the potential of arbitrary imprisonment, unlawful use of discretion, a judge taking years to issue a judgment, overt bias, etc. are acceptable risks and costs of maintaining judicial independence through blanket immunity, what preventative actions or mechanisms do you consider best protect against the potential for abuse of such unchecked power?

A: A strong code of judicial ethics that is observed strictly, and that is overseen by an independent commission or ombudsman.

Q: Since you wrote ‘Suing Judges: a Study in Judicial Immunity’, the Bangalore Principles of Judicial Conduct have been adopted internationally by the Judicial Group on Strengthening Judicial Integrity. What tangible impact, if any, has this had in regard to judicial accountability amongst the Commonwealth countries?

A: While I am unable to comment on the impact of this specific initiative, it is clear that judicial independence and accountability are increasingly under global scrutiny. I myself have participated in international conferences on these issues, and I have recently contributed a chapter to a new book published by Cambridge University Press (2011), titled ‘Judiciaries in Comparative Perspective’, edited by Professor H P Lee of Melbourne University. This book examines, from a comparative perspective, questions of judicial conduct, accountability, etc., in a number of areas. This is archetypal of the kind of current interest in the subject.

Q: Given what many scholars have recognised as a ‘dualist’ approach when it comes to countries often ignoring international conventions in their domestic approach to the law, have you been encouraged by the application of these principles by judiciaries around the world in their domestic standards or generally disappointed?

A: Yes. I think that judges are beginning to engage with the issues, but mostly extra-judicially. For example, Sir Stephen Sedley (now Lord Justice Sedley) in reviewing my book ‘Suing Judges’ about 18 years ago, said that I had ‘cogent arguments’. Justice Grant Hammond of the New Zealand Court of Appeal recently published a monograph on Judicial bias and recusals (Hart Publishing, 2010), which I reviewed in the Cambridge Law Journal. I believe that change will come, but, if coming from the judiciary, it will only be incremental. This is the common law way of doing things generally, and so is not a criticism in this respect. Radical change can only come through legislation. The question is whether any Parliament has the stomach for something so radical, when it brings no political capital.

Q: It has now been almost twenty years since you wrote this book. What have you noticed to be the single most significant legal change in the area of judicial accountability among Commonwealth nations since writing the book?

A: An increasing willingness by judges to engage with the issues. No-one (especially not the decent judges) likes a bad judge. Bad judges are bad for everyone – including the judiciary, and good judges are no less interested in maintaining the integrity of their vocation than law reformers. Judges increasingly recognise the problems. Unfortunately, the common law may not be well suited to the kind of radical change that would be required.

Q: Generally speaking, do you see the current worldwide trend to be toward increasing judicial accountability, toward increasing immunity or, alternatively, toward target judicial accountability (e.g. in the area of race or malicious acts).

A: In common law jurisdictions, I have not seen any trend towards reducing immunity. There is a clear quest for more transparent accountability – but that does not assail the citadel of absolute judicial immunity. Accountability here focuses more on judicial ethics than on personal judicial liability. This is unlikely to change. Even new international courts and tribunals are now having immunity clauses inserted in their statutes.

Q: I heard High Court of Australia Justice Dyson Heydon give a ‘Rule of Law’ speech several years ago where he spoke about arm’s length appeals and a vigilant independent bar as being vital to maintaining the rule of law. This indicates to me that smaller nations are logically at greater risk of an unruly judiciary. Did you find such a correlation in your research?

A: No, I cannot say that I have noticed any particular correlation of this sort. But I have not been looking for such correlations. They may well be there. I think that this would require some empirical research.

Q: Under the banner of judicial independence, New Zealand has refused to consider a code of conduct or a register of pecuniary interests for judges. There does exist a Guidelines for Judicial Conduct [copy attached] which until 22 months ago was kept secret from the public. This short doctrine is legally qualified by the statements, “A system of discipline according to a code of conduct, whether imposed by executive government or judicial self-regulation, is inconsistent with judicial independence.” Then, “So the standards discussed are in part tentative and subject to reconsideration.” This reminds me of the intractable laws nailed to the barn door in George Orwell’s Animal Farm. In your research, have you uncovered a similar approach to New Zealand’s that has actually translated to furthering integrity and accountability on the bench?

A: Sometimes judges have been sacked for gross misconduct. However, I do not attribute this to the presence of a code of ethics. I think that such judges would have been sacked even if there were no codes of ethics. While most countries do have a code of judicial conduct or ethics, in my view, the question is not the existence of a code, or even necessarily of its contents (which are broadly similar across countries). The pertinent question is what happens when the code is breached. Without an independent judicial commission or ombudsman, all that the codes amount to is self-regulation. I personally have a problem with self-regulation. But arguments for and against self-regulation exist in almost every field (banking, the press, football, insurance, etc.), most of which have lobbied hard against any form of external regulation. So I do not wish to single out the judiciary for criticism in this respect. I do believe however that the availability of a code can assist the cause of judicial accountability, even if only because judges who might not be sure of how to respond to a particular situation will have clear guidelines that they can follow. So the clearer and more detailed the guidance, the better the results could be – at least, for those judges who really want to do the right thing. A judge that wants to do the wrong thing would still do it, code or no code. Criminal laws have never stopped criminal behaviour for the minority part of society that chooses to do as it wishes.