IMPORTANT ISSUE

Evening Post, Volume CVI, Issue 126, 24 November 1923, Page 7

IMPORTANT ISSUE

APPOINTMENTS OF JUDGES

LAW. SOCIETY AND ATTORNEY.

GENERAL

A QUESTION OF PRINCIPLE.

Regarding tfie question of the appointment, of Judges, the following is a copy of a letter sent by the Wellington Law Society to Sir Francis Bell, Attor-ney-General :— APPOINTMENTS OF JUDGES. 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, at which your letter was carefully considered. As to the general rule that Judges 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 statel by you that aln»st fifty years ago (in 1874) when the country wag 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 RegistrarGeneral of Lands, does not strike my council as a convincing answer to the almost 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 thoee of fifty years ago. In. deed, 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 the Arbitration Court of a gentleman who was not of the activelypractising 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—s s had previously been the rule when a member of the actively-practising Bar .was appointed—by an appointment to any vacant position on the Supreme Court Bench.

As to the resolution that the position of Chief Justice should be filled only from the actively practising Bar, and not by the pi'omotion of a puisne Judge, we also repeat and emphasise our contention. The fact to which you'refer that in England Lords Justices and Lords of Appeal are sometimes selected from the 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^ The conditions in England in this respect do not present a true analogy to those existing in a country like Slew 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 eve of retirement. The statement that two appointments to the 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 the Judicial Committee of the Piivy Council unless he has held, or at the time of his appointment holds, a judicial office. Moreover, the appointments made from . New Zealand were firstly, that of the late Mr. Justice Williams, the senior puisne Judge, on his retirement from the Bench and secondly, that of the present Chief Justice. Plainly, neither of these appointments could be cavilled at, but the position might not perhaps be the same if a Government recommended for appointment to the Judicial Commitis^ junior puisne Judge who still retained his seat on the Supreme Court Bench. We hope that our position in this important matter will not be misunderstood. Our concern is only with, the question of principle, and, as stated in my'previous letter, we have deliberately taken the opportunity of raising the question at a time where 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 be free from political 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 be supported, and the public confidenco in and respect for the Bench maintained, is by the adoption of the resolution previously forwarded to you. previously forwarded to . you. Furthermore, may I be permitted to point out that the promotion of a puisne Judge to the position of Chief Justice must necessarily tend to lower the efficiency of the Bench. There are always one or more men at the Bar who would not accept a puisne Judgeship but who might be prepared toTaccept the position of Chief Justice if it became available to them. A puisne Judge previously appointed is already there on the Bench: his appointment to the 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 the Bench altogether of perhaps the strongest and best men available at the Bar. If ever the promotion of a puisne Judge would have been justifiable, it would have been the appointment on the grounds of service 'and eminence, of the late Mr. Justice Williams when Sir James Prendergast retired from the office of Chief Justice. The Government of the day, however very properly in our humble opinion came to the conclusion that the position should be offered to one of the members of the Bar best qualified to fill it. But for that decision it is not v 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 be permitted to remind you that the view for which we contend is practically the view held by your own political party before it attained power as a Government. In the year 1909 (see " Hansard," Volume 148, page 268) Mr. Massey is reported as saying:

It was one of the fundamental principles of British justice that the Judges should be 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:

He just wished to say ... jjjjj. they all recognised as belonging to a British community that the satisfactory -administration of justice was the one paramount object that should be keptsteadily in view not only by members of Parliament, but by all sections of the community. They all re cognised that one of the bulwarks of tho British Constitution was the poiiUoa p£ independency. occuEied I>£ Jba

British-Judges.. That position of independence was not gained without a struggle years and years ago, but the sound common-sense of the British, people recognised,that if the law wera to be impartially administered and liberty to be protected, the Judges must be m a position of complete independence and divorced from politics. . . •• The only institution left in.the country for which the people still entertained profound respect was the Supreme Court Bench; and the Judges of the Supreme Court should not be placed m a position, through any act of policy by the Government, in which they might be induced to become.competitors for any gift which the Government might have to offer. . . •■ ihe Judges must work to a large extent alone and they must be kept absolutely divorced from politics. If they could maintain that position, they could have no fear of the administration of the law in future; but once there was aroused in the minds of fhe people the feeling that there ;*a S : a riy bow to £he Government, in "order -to fat,,?,? X dva, nia ec"fore"for himself, they sapped the foundation on-which administration of justice rests. ' morp%r m S°f my council w°uld he mZiJ l° 6"bse( luently became: your fibm tenal colleagues. And we know of UK ttT% beh? en the conditions of iu^Tifv t hoße °{ today which <»rtd Par f tht? 56 °f VI6W 0D «^er your

We regret that there a p pear g to be a sion »nC/ °f °pU?ioa betw^n «* profesSf GoZ e*nment on-these Important ?mTi'S nt We cannot hel P thinking tnf tt dlffe, rence J must be more apparwhich we deplore—that in New Zealand almost immediately a member of the rX^T 6, 8 Attorney-General, he seems practically to cease active practice at the rf£ a^ lo6e t°Uch with the-profes-nnTni ™f tever aPParent difference' of tW h * m*Z be> W*«l:: trusts that whenever the necessity for an-ap-pointment to the office, of Chief Justice from tune to arises, the Govern- "^ f°r.,the.tfa»e being wilj not lose signt of the views now expressed by the profession throughout New"- ; Zealand and, as I have pointed out, held arid expressed by the leaders of your own political party. I may add in conclusion that my council deliberately directed me not to pub;lf "X ?;evious !, etter to you, as it was thought that a public discussion pi these questions might be inadvisable! -As however, you apparently think' otherwise, and published in the' Pres S : your letter to me, together with extracts from my letter to you, I am, with the concurrence of my council, handing the.Press copies of this reply.—l have the honour to be, Sir, i

■ Your obedient servant, W. PERRY, President, Wellington District Law Society. P.S.—I would like to add that in England the alteration from the position of a puisne Judge to that of a Lord Justice involves. (I believe) no increase in salary; and I believe I am right in saying that promotions are not made from tie Divisional Court to Lord of Appeal, though they are sometimes made from the position of ;Lord Justice.—W.P.