Simon Power (less) when judges break law

Who checks the judges?

In a startling concession last week, New Zealand Minister of Justice Simon Power claimed the government does not ensure judges abide by legislation or keep official records – nor has the Ministry given any consideration to requiring judges provide a register of their financial interests – because to do so “would amount to an unwarranted interference by the executive in the judicial branch of government and could undermine public confidence in the independence of the judiciary.”

So who is checking?

New Zealand Minister of Justice Simon Power last week responded to an Official Information Act request by public watchdog Penny Bright, claiming the government does not ensure judges abide by legislation or keep official records.   He also stated on the second page of this response that the Ministry of Justice has not given any consideration to requiring a judicial ‘register of interests’ which would help flush out potential conflicts of interests by sitting judges.

Simon Power
Simon Power

His justification was this ” would amount to an unwarranted interference by the executive in the judicial branch of government and could undermine public confidence in the independence of the judiciary.”

No one wants information which could shake our blind trust in the honour of our furtive judges.  Notwithstanding the secret handshake with the Attorney General that landed these lawyers in the vaunted position of NZ Judge (how did you think they were chosen?), we have already been dealt the cards.  These judges have the job for life, in the most important of State institutions.

While the stakes for society are huge, we are now subject to their judicial whim.  Ignorance is bliss.  We also do not want to piss them off.  The mere mention of surveilling their professional activity to ensure justice is seen to be done is personally insulting to this group.  NZ judges regularly assert such scrutiny infringes on their independence to rule without fear or favour.  Perhaps a little fear is a good thing.

Casinos – just one place where the stakes are not so high – surveil.  But it seems not to bother the honest gamblers.  If anything, it helps keep them honest.  That bank ATMs video every user has been considered best practice for years.  It seems as archaic as it is illogical to cling to the notion that a judge’s notes and summary constitute the appropriate record in our public courts, or that we can trust these judges to voluntarily disclose records and declare their pecuniary conflicts when it is important for the public to know.

History and common sense tell us that putting people in positions of power without transparency or accountability singularly increases cheating and abuse of that power.

So if Simon says it is not up to the executive and legislative branches to watch the judges, who is?  The judges, of course.  Not that they need to.  According to the Ministry, no judge has been removed for misconduct in New Zealand’s history.  The NZ judiciary approach to misconduct is akin to the Roman Catholic Church’s approach to pedophilic priests in the 1970s.  And every appearance is that most in the judiciary believe their own press that covering up corrupt judges among them somehow protects the integrity of the judiciary at large.

So it may be years before we find out the depth and breadth of judicial abuses occurring today, but where are the records showing these judges have been informed of the law governing their professional conduct?  After all, the entire Supreme Court claimed ignorance of s4(2A) of the Judicature Act as their excuse for not initially finding fault with fellow Supreme Court Judge Bill Wilson running a business on the side last year (refer par. [5] SC 64/2007 [2009] NZSC 122 ).

According to Mr Power’s OIA response, the Crown holds no such records.  The Justice Minister declined to answer such questions, relying on s18(g) of the Official Information Act 1982; the section which states he believes the information requested is not held by any department of the Crown.  How can this be?

One reason is the Judge lobby are wizards when it comes to getting over on the farmers and teachers in Parliament, at the same time giving the public a false impression they have checks and balances in place.  It is, by inside accounts, a slick operation.  Judges swear an oath to the Queen but claim not to have Crown affiliation when to do so provides grounds for secrecy and evading laws which govern Crown officials.

One ironic example of this farce is the Institute of Judicial Studies which the Judges set up in 1998.  Its self-professed mission is to foster responsible decision making through education, without compromising judicial independence (there’s that magic word again).  This same independence presumably exempts the IJS from explaining how their primary mission can be so flawed that every judge on the Supreme Court claimed ignorance in respect to the statute which limits their ability to run side businesses and hold private office!   Here’s another shocker – Chief Justice of the Supreme Court Sian Elias heads the governing board of the IJS.

While NZ mainstream media such as the TV networks, Fairfax and the NZ Herald largely do not report such news regarding the judiciary for fear of provoking the wrath of powerful judges in New Zealand, the intrepid reporting of Jock Anderson and Liam Baldwin, both with the National Business Review, has opened the public’s eyes.

If only we can keep those eyes from being distracted by the celebrity sightings being prominently featured in the rest of New Zealand’s media.  Unless and until this is achieved, New Zealand Judges at the highest levels will likely continue to rely upon ignorance of the law when it comes to their own conduct and the elected representatives will continue to play Stepford wives to these judges.