Thursday, May 17, 2007



Several of New Zealand's top judges are suffering personal debt pressures despite earning hundreds of thousands of dollars salary per year. The risk that these pressures pose upon the Court they serve - and for a society reliant upon fair and equitable administration of justice - has become a serious concern that is being increasingly raised in private legal circles. There are a number of reasons for this that will be detailed shortly but it should first be stated that no case has yet publicly surfaced of a judge issuing a ruling for his or her obvious financial gain. Nonetheless, the concern is very real. This concern is reinforced by formal complaints recently made against at least a couple judges for failing to disclose they had a conflict of interest in cases they ruled on. In two such cases that Kiwisfirst became aware of, the complaints were straightaway rejected by the Head of the Bench as not worthy of investigation.

Many make the commonsense argument that relying on the Head of the Bench to expose impropriety occurring in his Court is a fundamentally flawed method of oversight. In 2004, the Labour government agreed. It passed the Judicial Conduct Panel Act 2004 setting up the Office of the Judicial Conduct Commissioner (JCC) with the expressed purpose of investigating complaints of misconduct against judges and recommending appointment of a Judicial Conduct Panel to independently investigate complaints where the JCC's preliminary investigation identifies a prima facie case exists. One major problem is the Commissioner is a practicing New Zealand lawyer.

Perhaps unsurprisingly, despite the JCC's mandate, not one of the 178 written complaints received so far has been deemed worthy of a recommendation for a Panel investigation. The argument then is whether the oversight is genuine or, alternatively, necessary. As one lawyer who wished to remain anonymous said, "It is difficult to argue this is meaningful oversight. But perhaps we can take comfort that all our judges are infallible."

It must be noted that this was a difficult story to investigate given the palpable fear that permeates the legal profession on this issue. More than a couple lawyers said judicial misconduct is a non-issue; it simply doesn't occur. No lawyer would discuss judicial misconduct over the phone and most behaved as if the reporter had violated an unwritten rule in speaking the unspeakable. But then, this is actually more than an unwritten rule. Few members of the public realize that every lawyer in New Zealand has sworn an oath that they will put the interests of the Court ahead of even their clients. And this is one oath that the Courts and the Law Society stringently enforce. It is euphemistically referred to as 'maintaining the dignity and honour of the profession' and any lawyer who is perceived to have spoken or provided any information that undermines the Court or a judge's authority can lose their law license, regardless of the accuracy of the information. Consequently, no lawyer would go on the record for this story. The information herein is compiled from a number of sources.

What do judges earn and how could their debts adversely affect their rulings?
In all, New Zealand has close to 200 full-time judges. New Zealand's 130+ District Court judges make $243,000 per year, High Court judges make $309,000, Chief High Court Justice Tony Randerson makes $343,000 and Court of Appeal judges are paid $325,000 per year. At the highest level, Supreme Court judges make $348,000 annually and Chief Justice Sian Elias receives $372,000. While this is a lot of money, judges generally live a much different lifestyle than the ordinary New Zealander. Their lifestyles often include first class travel, frequent overseas travel, five star hotels, expensive works of art, luxury holiday homes and automobiles, private schools for their children, domestic employees, $1,200 suits, $200 bottles of wine and all the other accoutrements deemed fitting of their high social status. When you consider that judges fall into the 39% tax bracket and must fund their lifestyles with after tax dollars, it is not difficult to see how even judges making over $300,000 per year can get overextended financially. The main difference is that, unlike the average Kiwi who gets into debt over his head, judges have people more than willing to help the judges out financially, from the banker who offers them below market mortgages to the former business partners who provide everything from paid holidays to paid staff.

There is also the fact that judges are lawyers who have spent their adult lives manipulating the legal system on behalf of their clients (their profession actually trains them to not get hung up on moral issues of right and wrong), and now find themselves in positions of unprecedented power where they are virtually unaccountable for their actions, it is easy to imagine judges falling victim to their basest desires. This is particularly the case in times of personal financial stress. This danger is all the more pronounced in New Zealand given the unwarranted belief promoted by the judiciary that, because New Zealand is such a small country of only 4 million people, it is unreasonable to expect a judge to not have past ties to litigants and lawyers who appear before him or her. It is this last scenario that ordinarily requires judges the world over to recuse themselves from hearing that case. That is, everywhere but New Zealand. It used to be the situation that at least a permanent record was made of proceedings in the High Court, thereby instilling some discipline into court proceedings, but this was abolished by the judges a few years ago. Now, the only record of proceedings is what the judge chooses to write in the 'official' minutes and rulings. Considering this, it is not surprising that the judge's version of courtroom events is often quite different to what the litigants recall. As Lord Acton observed more than 100 years ago, "Power tends to corrupt. Absolute power tends to corrupt absolutely." It is as true today as it was then.

Court insiders have revealed that the culture of personal entitlement and cutting deals among judges is now so fully ingrained that new judicial appointees with the highest ideals and respect for their judicial oaths immediately recognize that tacit acceptance of judicial bias and deal making by fellow judges is minimally required to get along. Too often in this environment it does not take long for the new judges to begin rationalizing that favouring their own mates does not undermine their duty to society. One justice advocate calls this "the immaculate delusion", a stance anecdotally supported by research conducted for the Brain Drain feature that appeared on Kiwisfirst last month. For that story, three New Zealanders spoken to reported they had recently moved their businesses to Australia, Indonesia and the United States respectively, all citing the unsavory favoritism of the old boys' network as a major reason for doing so.

There is little question that even without such burdens of conscience judges have a stressful job. The combination of sizeable caseloads, legal complexities, staff movements and the stress of getting it right cannot be underestimated. Family and financial pressures only add to the mix. True to human nature, many judges look for an escape. In these circumstances, alcohol and prescription drugs provide solace to more than a few judges. Gambling is increasingly a problem among judges, as it is with the public in general.

All of which adds to the danger. These self-destructive bents leave judges open to the potential for blackmail. One only needs to recall the uproar that occurred when certain judges were found to be watching porn movies in their offices two years ago. If anything, the judges learnt valuable lessons from this scandal, and it is not simply how potentially vulnerable they are to blackmail. Resultantly they have become better at damage control. Last year, a judge was exposed for changing the official records of a trial. In that instance, the Court quickly closed ranks to suppress the details and prevent a public outcry. It was one of the rare occasions where the story was actually reported by New Zealand newspapers. However, the judge was not publicly named.

What can be done?
Until lately, the governments' position has largely been to rely on each judge's personal commitment to live up to their noble pledge or, alternatively, rely upon the Head of Bench to discipline those who do not. But while this proved an inherently flawed method of instilling accountability, it is already obvious that the Judicial Conduct Panel Act 2004 has also not had any meaningful impact. Perhaps it is the case earlier expressed that we can take comfort that all our judges are infallible. Even if this were the case, would it not still be prudent to ensure this continues by implementing four simple safeguards? First, to ensure accuracy and transparency, all court proceedings need to be recorded. Second, judges who have been found to rule contrary to established law or to have ignored indisputable evidence in three cases should face a mandatory referral to the Attorney General for possible disciplinary action, with this action itself being made public. Third, lawyers who do report judicial misconduct will be properly rewarded by the government, including preferential access to legal aid cases. Finally, a truly independent complaints process must be set up to ensure a proper investigation into formal complaints made against judges, with adequate powers to remove judges found guilty of misconduct.

Whether we realize it or not, we are all hugely dependent upon an honest and equitable judiciary. A just society is what separates us from countries like Zimbabwe and Columbia, and it does not happen by accident. It is the result of purposeful effort and vigilance. It is too important to lose. #

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