We have learnt from history that it is a good idea for judges to be independent from the other branches of government, namely Parliament and the Executive.
Judges should be free from political influence; for example, a Minister should not pressure a judge to decide cases in a certain way.
But as recent events remind us, we should also be on guard against more subtle threats to the independence of our judges.
Parliament is considering some major changes to criminal procedure.
Some of the changes are very controversial, including reducing the availability of jury trials, and introducing a requirement for defendants to give the prosecution advance notice of their arguments or risk a sanction; a failure to give notice could be used against them.
The Leagle Beagle blog has pointed out that some of our judges are so concerned about these proposals that they have made submissions to Parliament.
Prominent among them is Chief Justice Dame Sian Elias and District Court judges.
Some parts of the submissions are strongly worded.
The Chief Justice said her “grave concern that these (advance notice) provisions are contrary to longstanding principle,” and her concern about the “tight time constraints” for developing the proposals.
The District Court judges said, “It is hard to imagine a hypothetical scenario where it would ever be appropriate” to apply the sanction for failure to give notice.
So why do these submissions raise issues about judicial independence?
The answer has been pithily expressed by former Prime Minister Helen Clark: “When judges stride into the political arena they will get a political response.”
There are Guidelines for Judicial Conduct and they say that judges may make submissions “on a matter affecting the legal system.”
However, they caution that, “It is important to avoid entering upon matters of a political nature.”
There are reciprocal conventions that say that politicians should not criticise judges.
These guidelines and conventions ensure judges and MPs respect each other’s roles, and stop them trying to influence each other in improper ways.
They also help maintain public confidence in judges.
If we see judges embroiled in disputes about policy, it might undermine our confidence that judges are truly independent from politics, Parliament and the Executive Government.
So, the rules help to maintain confidence in the justice system itself, and without this confidence, the system would not work properly.
Some may argue that judges are experts, and that we should value their public views on these issues.
But it is hard to see that the arguments could only be made by judges, or that public submissions are the only way to make them.
In any case, the risk is that the short-term gain of judges’ public contributions leads to the long-term pain of lower public confidence and erosion of judicial independence.
The submissions from Chief Justice and District Court judges do appear to venture into the realm of value judgements about policy, rather than technical arguments about practical effects on court functions.
We should feel nervous about these submissions, even if they are unlikely to mean the constitution collapses tomorrow.
In the meantime, let us hope our politicians show cool heads, and bite back any political response.
