Activist judges will be destructive to public confidence in courts - Gleeson

by Azadeh Khalilizadeh

Judges should not be political activists or they could risk loss of public confidence in the courts, according to High Court Chief Justice Murray Gleeson.

Speaking at a conference at Canberra's National Judicial College of Australia in February 2007, Justice Gleeson said the "ultimate test" of assurance was whether people believed the judge holds the "scale of justice evenly" when it comes to a legal contest between a citizen and government.

"It is also important that people believe that judges are committed to deciding cases of all kinds, regardless of the identity of the parties, fairly and according to law," he added.

According to Justice Gleeson, judicial impartiality is not a "myth" but vital to public confidence in the courts. He said there could be no public confidence it were "general opinion" that the best judges are those who break free of the myth of impartiality and exercise judicial power in order to promote "social ends".

"If the idea of judicial impartiality is consigned to the intellectual scrap heap, judicial authority would soon follow it," he said.

In this context, the Chief Justice said judges who pursue a "personal agenda" would be "destructive of the authority of the court".

"Manipulating the law in pursuit of a judge's personal agenda might seem clever to an enthusiast for a cause, but it would be destructive of the authority of the courts and therefore, ultimately self-defeating,"he said.

Justice Gleeson said while some judges have "well-known" political backgrounds, they should "avoid political activity" once appointed.

This was for a number of reasons, including:
  • While a judge's indication of a preference for one side would "attract applause" from interest groups, "thoughtful people" would recognise the "inappropriateness" of such conduct.
  • Politicians will complain of political conduct by those who should retain judicial independence and impartiality, even if that conduct is in support of their side of politics.
  • "Abuse of public office by engaging in inappropriate political activism is easily recognised, especially by politicians, who are quick to notice when a political point is being made, and quick to complain when it is being made by someone who should keep out of politics," he said. "They are too shrewd to approve a particular instance of such conduct just because it happens to support their side of politics."
But he said one useful indicator of a judiciary's reputation for impartiality was the readiness with which politicians, the media and interest groups demand a judicial enquiry as the procedure for investigating controversial and sensitive issues.

"The assumption is that the outcome of an enquiry will be accepted more readily by the public if it can be described as judicial", he said. "It is obvious that one of the attractions to government of former judges to conduct enquiries is the aura of impartiality that is brought by their former status."

The Chief Justice also highlighted the importance of lawyers in maintaining the way the public see the courts.

"As a class, they are knowledgeable and critical observers of judicial behaviour," he said. "Without the confidence of the legal profession, it would be impossible for the courts to enjoy the confidence of the public."

According to the Justice Gleeson, lawyers will communicate their perception of the court/legal system to their clients, who in turn communicate it to the public.

"The judicial branch of government should keep itself well informed about what the legal profession thinks of its performance; not because it can expect comfort from professional solidarity, but because there views of lawyers influence their clients, and many members of the wide public," he said.


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