APPOINTMENT OF JUDGES

Dominion, Volume 18, Issue 53, 27 November 1923, Page 3

APPOINTMENT OF JUDGES

LAW SOCIETY’S REPLY TO ; ATTORNEY-GENERAL The following is a copy of a letter addressed by Mr. W. Perry, president of the Wellington District Law Society, to Sir Francis Bell, Attorney-General:— Supremo Court Library, Wellington, November 23, 1923. Hon. Attorney General, Wellington. Sir, —I have the honour to acknowledge the receipt of your letter of the 12th inst. A reply has necessarily been delayed pending the holding of a meeting of my council for the purpose of considering your letter. Such meeting has now been held nt which your letter was carefully considered. As to the general rule that Judges should be appointed only from actively practising members of the Bar. my council.sees no reason to recede in the slightest degree from the resolution forwarded with my previous letter. The fact stated bv you that almost fifty years ago (in 1874), when the country was in its infancy, it was found desirable to appoint to the Bench a gentleman (however eminent he subsequently became as a Judge) who held the office of the Registrar-Gen-eral of Lands does not strike my council as a convincing answer to the a’most unanimous resolution of the profession throughout the Dominion. It is surely a sufficient retort to say that the conditions of the present day are vastly different from those of fifty years ago. Indeed the view held by the profession seems to have been .shared by the Government even so recently as in 1921, on the occasion of the appointment to the Judgeship of tho Arbitration Court of a gentleman who wns not of the actively practising Bar. when it. was reported that a condition was made, which in the circumstances, had the unanimous support of the profession, that the appointment should not be followed —as had previously been the rule—when, a, member of . the actively practising Bar was appointed. by an nppo’ntment to any vacant position on the Supremo Court Bench.

As to the resolution that tho position of Chief Justice should be filled only from the actively practising Bar. and not bv the promotion of a puisne Judge, we also reneat and emphasise our contention. Tho fact to which you refer that in England Lords Justices and Lords of Appeal are sometimes selected from tho puisne Judges, -or that a puisne Judge is sometimes promoted to the position of Master of the Rolls, it is respectfully submitted has no bearing. Tho conditions in England in this respect do not present a true analogy to those existing in a country like New Zealand. But even in England it is certainly not the modern practice—if ever it was the practice at all—to appoint the Chief Justice from the ranks of the puisne Judges, though a merely temporary appointment of that nature was made not long ago of the senior puisne Judge who was on the even of retirement. The statement that two appointments to tho Privy Council of New Zealand Judges have been made on the recommendation of the New Zealand Government is no answer to our resolution, in view of the fact that, according to British constitutional practice. no person is eligible for appointment to file Judicial Committee, of the Privy Council unless ho has held, or at the time of his appointment holds, a judicial office. 'Moreover, the appointments made from New Zealand were, firstly, that of tho late Mr. Justice Williams, the senior puisne Judge, on his retirement from the Bench, and secondly, that of tho present Chief Justice. Plainly, neither of these appointments could be cav'lled at. bat the position might not perhaps bo the same if a Government recommended for apointment to the Judicial Committee a junior puisne Judge who still retained his seat on the Supreo Court Bench. We hope that our position in this importent matter will not ho misunderstood. Our concern is only with the question of principle, and. as stated in my previous letter, wo hove deliberately taken tho opportunity of raising the question nt a time when there is no appointment in immediate prospect. It has been said over and over again that the administration of justice should not only be pure, but that it should also seem pure. Similarly, in our opinion, not only should the Supreme Court Judges bo fren from po’itical influence, but they should also seem free from oven the merest suggestion of such influence. That is the principle that we are supporting, and we are satisfied that the only way in which that principle can lie supported, and the public confidence in and respect for the Bench maintained, is Fy tho adoption of tho resolution previously forwarded to you. Furthermore, may I bo permitted to point out that the promotion of. a nuisno Judge to the position of Chief Justic" must necessarily tend to lower the efficiency of the Bench. There ere always one or more men at the Bar who would not accept a puisne Judgeship, but who might he prepared to accent the position of Chief Justice if it became available to them. A puisne Judge previously appointed is already there on tho Bench : his appointment to tho position of Chief Justice (apart from the objections already stated on the ground of principle) would therefore mean that the country loses the services on tho Bench altogether of perhaps the strongest and best men available at tho Bar. If ever the promotion of a. nuisno Judge would have been justifiable, it would have been the appointment on tho grounds of service and eminence, of the late Mr. Justice Williams, when Sir James Prendergast retired from the office of Chief Justice. Tho Government of tho day, however—very properly in our humble opinion—came to the conclusion that the position should bo offered to one of the members of the Bar best qualified to fill it. But for that decision it is not unreasonable to suppose that the distinguished services of our present Chief Justice would have been entirely lost to the country as a Judge.

Reverting to the question of principle, may I lie permitted to remind yon that the vjew for which we contend is precisely tho view held by your own political party before it attaioed power as. a Government. In tho year 1909 (see Hansard, volume 1-18, jiago 268), Mr. Massey is reported as saying:— “It was ono of tho fundamental princip’es of British justice that tho Judges should lie removed from any suspicion of political influence or of being affected by political patronage.” And Mr. Herdman, at pages 267 and 268 is reported thus: — “Be just wished to say . . . that they all recognised as belonging to a British community that the satisfactory administration of justice was the ono paramount object that should be kept steadily in view, not only by members of Parliament, hut by all sections of the community. They nil recognised that one of the bulwarks of tho British Constitution was the position of independence occupied bv the British Judges. That position of independence was not gained without a struggle years and years ago. but the sound common sense of tho British peop?> recognised that if the law were to be impartially administered and liberty to be protected, the Judges must bo in a position of complete independence and divorced from politics. . . . The only institution left is the country for which the people still entertained profound respect was tho Supreme Court Bench; and the Judges of the Supremo Court should not be placed in a position, through any act of policy by the Government:. in which they might be induced to become competitors for any gift which tho Government might have to offer. . . . The Judges must work to a large extent alone, and they must he kqnt absolutely divorced from politics. If they could maintain that position they could have no fear of trie administration of tho law in future, but once them was aroused in the minds of the people (ho feeling that there was any tendency on tho part of a Judge io bow to tho Government in order to get an advantage for himself they sapped the foundation On which tho administration of justice rests.”

Th© members of my council would bo more than surprised if it was suggested to them that at that time (in 1909) vour own view differed from that of thosa

who subsequently became your Ministerial colleagues. And we knew of no difference between the conditions of 1909 and those of to-day which could justify n change of view on cither your part or theirs.

We regret that there appears to be a difference of opinion between the pro fession and yourself as a member of tho present Government on these important questions, but we cannot help thinking that the difference must, be more appar'ent than real, and is due to the fact—which we deplore— that iu New Zealand, almost immediately a member of the Bar becomes Attorney-General, he seems pract’cally to cease active practice at the Bar, and to lose touch with the profession. Whatever apparent differences of opinion there may be, my council trusts that, whenever the necessity for an appointment to the office of Chief Justice from time to time arises, the Government. for the time being will not lose sight of the views now expressed bv tho profession throughout New’ Zealand, and, as I have pointed out, held and exnro=sed bv the leaders of your own political party. I mnv add in conclusion that my council deliberately directed me not to publish my previous letter fo yon, as it was thought that a public discussion of these questions might bo inoclvisable. As, however. you apparently think otherwise and published in the Press your letter to me, together with extracts from my letter to you. T am, with the concurrence of my cQuncil, handing the Press copies of this reply.—l have the honour to be sir, your obedient servant, W. PERRY, President. Wellington District Law Society. I would like fo add that in. England the alteration from the position of a nuisne Judge fo that of a Lord Justice involves (T believe) no increase in salary; and I believe I am right in saying that promotions are not made from Iho Divisional Court to Lord of Appeal, though they are. sometimes mnd>' from the position of Lord Justice.—W.P.