Do As I Say, Not As I Do: Judicial Misconduct and the Role of Direct Democracy in a Very Small Place

Abstract

Judges are human beings who are subject to human weaknesses and imperfections. As Benjamin Cardozo said, “the great tides and currents which engulf the rest of men do not turn aside their course and pass judges by”. It follows that, when judges err in matters of conduct, we should have in place systems that hold them to account and preserve the fundamental necessity of public confidence in the judiciary. The formulation for which I argue in this paper is as follows: the presence of three factors in New Zealand creates an atmosphere which readily sacrifices judicial accountability. Our local conditions give rise to multifarious situations of conflict within the profession. The twin doctrines of judicial independence and judicial immunity remove the judiciary from the sphere of normal democratic accountability. Finally, the measures currently in force to scrutinise judicial behaviour have been hamstrung in operation and rely on the notion of representative democracy. If the cornerstone of any judiciary is the enjoyment of public confidence, then I assert that the power to chastise and correct our judges should be one which lies, at least in part, with the people themselves. I base this analysis on the idea of constituent power and the eclipse of representative government by its counterpart: direct democracy. Integral to the suggestions I raise is recognition of the limitations and dangers of reform in this area. We cannot fundamentally alter the peculiar characteristics of our legal profession. Entrenched conflicts will not disappear overnight. Moreover, while “the independence of the judiciary is not an immediately appealing quality to many people”, to tamper with the established doctrines of independence and immunity may do far more harm than good. Therefore, we are left with only one avenue. This is to refine the processes by which we discipline our judges. I argue that our current disciplinary schemes are inadequate for numerous reasons. The answer proffered in the final section of this paper is that direct democracy may provide a salve to a public agitated about the conduct and role of the judiciary in modern New Zealand society. The most simple and effective way of achieving this end is by a simple amendment to our constitutional legislation ...