OUR JUDICIAL SYSTEM

Taranaki Daily News, 7 September 1935, Page 13 (Supplement)

OUR JUDICIAL SYSTEM

HIS MAJESTY’S JUDGES

(By

“Lex.”)

Tlie retirement of Mr.—now ex-Justice —Herdman from the Supreme Court Bench of our Dominion, the encomiums passed by him on the system when he said farewell, the visit to these shores of an American judge and his comments on the system which he helps to administer, serve to draw attention to the system by which justice is administered in our Dominion. That the subject is a serious and weighty one no one will deny. That the matter of governing relations between the ruling powers and the citizens and citizens “inter se” of a country is a matter of the last importance, no one but a thoughtless person would deny. The United States judge referred to declares the American system under which judges are elected for only a period of years to be unsafe. Mr. Justice Herdman could find no fault in the system which exists in New Zealand. Of a surety, no human system is perfect. Every one of them will betray evidences of the imperfections of man. “Here we see through a glass darkly.” In attempting to avoid Scylla, man habitually falls into Charybdis.

It is an adage of the government of peoples that “solus populi suprema lex.” The best laws have for their object the isafety and well being of the people. According as laws do this or fail, they are good or bad. For good oi' ill the Parliament in England by the Act of Settlement A.D. 1700, adopted an appointive-for-life system and hedged the office with such security as to make the tenure of it almost unassailable. It gave them a tenure of it—in the Latin phrase, “quamdiu se bene gesserint,” i.e. so long as they shall have behaved themselves—and they were to be removable from office only cr. an address from both Houses of Parliament; so that the behaviour, if taken exception to, was to be such only as should receive condemnation from a majority in both Houses of Parliament. It is not in the writer’s knowledge that any judge has ever been so removed. In addition, salaries were fixed and were not afterwards to be reduced. But in order to appreciate -why the King’s judges were thus dealt with, it is necessary to remember that the object was forcibly to remove them from all influence exerted by the King. It is necessary to consider the circumstances that gave rise to the move. These are dealt with exhaustively by Professor Holdsworth in Volumes V and VI of his History of the Laws of England, particularly as he traces the career of Sir Edward Coke.

The following paragraph is taken from Creasy’s Rise and Progress of the Constitution, page 335, as being further illuminating of the situation: “The Stuart kings had been in the habit of systematically packing the bench, in order to secure decisions favourable to the Crown, on all points of law; and in order also that unscrupulous partisans of the Court should preside at all State trials, and work out the royal partialities and hatreds. Men who showed any independence in such matters, or who. were known to be opposed to the views of the Court, were summarily dismissed from the bench, and more obsequious tools of the Government were appointed on the eve of any important judicial proceeding. While this could be done, the liberties of the subject were never safe. There was not one that might not be brought in some form before a court of law, to be upheld' or nullified; and the sovereign who could garble at his will the administration of the laws, needed care little who made them. Without open violence,’ it was always in his power “constitutionally to ruin the constitution.”

New Zealand took over the judicial system of England as it had emerged after the conflict between Parliament and the King as fixed by the Act of Settlement, and our Judicature Act contains provisions essentially the same as those contained in the Act of Settlement. Since this Act there occurred no tampering with .the salaries of judges, save that in keeping with the general progress of the kingdom they were from time to time increased, till the great depression. It was about 1930 that the question was debated in the House of Commons as to whether the judges should suffer abatement of salaries together with the other civil servants. Mr. Stanley Baldwin put the matter pithily when he said that there was no reasori why he should suffer cuts and they should not. And their salaries were reduced. Were the foundations of the judicial system thereby- shaken? Was justice impaired thereby? No. Did the judges continue to do their work as they had in the past? Assuredly, yes. It is worth while observing that‘our magistrates who exercise wide and important judicial functions are appointed by the Govemor-in-Council and are removable by him, which means that this is done by Cabinet. There is no statutory pronouncement also that their salaries may not be altered. From these premises there arise some reflections.

First that the judges owe their appointment and office to the Legislature; that is the will of the people, and that what the people gave, they may retake. No enactment can put’ it out of the power of the Legislature, to control such officers of State even as the judges; that a continuance of the present system will last only so long as it subserves the well-being of the people; that condition will depend largely upon how the judges perform their high and important duties. It may be true to say that there is no dissatisfaction with the system, but there have been murmurings of discontent against individual members of the judiciary. The meeting of protest held at Auckland about 20 years ago is still fresh in the memory of some who attended it. But when matters of dissatisfaction are considered, the echoes answer “What can be done? It is but natural for imperfect men to reveal their imperfections.” Conditions being as they are, it is of the last importance that none but the best men should be appointed. It has repeatedly been emphasised that the due administration of justice under the system which Britain and her. Dominions have adopted is an independent and fearless bar. The need for this as a counterpoise will be obvious. Counsel at the bar on many occasions act as the spear point of public opinion, which otherwise, might not reach the sanctum sanctorum inhabited by the judges. This question may be put: Would it be wise to alter the system? Frankly, the writer is of opinion that in some cases the power wielded by the judges is too tyrannical; but. should all the judges be controlled in some way? In Soviet Russia two lay assessors are associated with each judge in order that they may keep him en rapport with the public sense. It has often been declared that the retention of wigs and gowns creates an artificial atmosphere in which the truth is often obscured. Would it be better to conduct the business of the courts in shirt-sleeves, so to speak? So be it that individual judges remember their duties and relegate their powers, the writer can suggest nothing.