Monday, 1 July 2013

Should Courts Be Free from Political Criticisms



- Roy Kim, author of this blog, 2012

The attacks on Australian judges and their decisions have become ‘more vituperative, more sustained and more intensely personal’.1 If the supremacy of the courts is lost, it will become the plaything of politics trapped in ‘a political arena’.2 The citizens and lawyers are already living in ‘an age of prevalent judicial controversy’.3 Since the 1990s, political leaders and media pundits jumped with gusto onto the ‘judicial activism’ bandwagon.4 Discussions about the decisions of the courts have become more frequent ‘with as much venom as those of our more usual anti-heroes, the politicians’.5 The Hon Michael Kirby acknowledges that people can ‘have and express differing views about the decisions of the High Court; it is their right in a free society’6 and many acknowledge that political discussion is necessary to achieve true democracy. This does not, however, imply that the integrity of the court should be challenged with political criticisms or other denigrations made by the citizens. The essay will discuss the supremacy of the courts and why courts should be free from political criticisms. The list of reasons why it should be free from such criticism is not exhaustive but only three matters will be discussed in this essay. They are public confidence, judicial independence and judicial impartiality.

A court is no use if it has no trust bestowed by the citizens; ‘There is no supremacy of law over the supremacy of individual will’.7 The Hon C S C Sheller delivered in his speech8 that public confidence is one of the ‘three inter-related ideas that underpin Australia’s democratic and consensual society.’ His Honour continues, ‘if the public loses confidence in the independence or impartiality of the judiciary the democratic structure is weakened and the rights and freedoms of our citizens [are] put at risk.’9 The former Commonwealth Attorney-General Williams emphasises that public confidence in the judiciary is likely to be undermined by political criticisms and therefore ‘damage the legitimacy necessary to its effective functioning as the third arm of government’.10 The Hon Sir Gerard Brennan and Malcolm Fraser, a former Australian Prime Minister, agree with Williams and state, ‘the rule of law depends on and is perhaps synonymous with confidence in the courts’11 and that respects conferred on courts will diminish if courts are subject to criticisms.12 Court’s duty is to resolve disputes and therefore may be referred to as an arbiter of a conflicting society. It is crucial that public confidence is maintained, not diluted by political criticism, to promote a society to be effective whose ‘authority will be accepted by the parties’13 whether they are the rich and poor, majority and minority, the powerful and weak.

An article illustrating how judiciary will be affected by political criticism appeared in the Sydney Morning Herald on 11 June 2001. There was an article in the newspaper by a reporter Evan Whitton which contained the following:

      Unlike judges at adversary trials, commissioners and coroners at least do not conceal relevant evidence, but they are so habituated to suppressing evidence that they find it hard to recognise the truth when they see it. 

‘This sort of nonsense,’ as the Hon Sheller puts it, ‘published in a daily newspaper which is widely read, if it gains credence, tends to harm the institution’.14 Moreover, the Hon David Ipp says ‘many seem to have no understanding of what they are doing when they reveal in the process of judge bashing’.15 Their Honours, in summary, acknowledge that such criticism may harm the judiciary although they may be of ‘nonsense’ and lack in understanding of the court’s process. Another recent example is Australia’s current Prime Minister Julia Gillard’s criticism of the High Court when the government’s so-called Malaysia solution was scuttled by the court’s decision. Malcolm Fraser described that the attack ‘may be the first general attack by a prime minister on the court’.16 This exemplifies that separation of powers doctrine is rather theoretical.

Under the doctrine of separation of powers in Australia, there is the constitutional separation of the three branches of government: the executive, the legislature and the judiciary ‘so that each has separate personnel exercising specified, autonomous powers’.17 It is aimed at preventing abuses of power to the detriment of a free society,18 and the two examples has shown that judiciary is interfered by the executive, the legislature or other inappropriate divisions when they should be left to make decisions by exercising their independent professional responsibilities. Additionally, Dr Meyerson believes that there is a strong connection between the separation of powers and the rule of law. He states ‘the separation of powers serves the rule of law by insisting that only our elected representatives should make law and by confining the exercise of the judicial function to a branch of government which is independent of domination or manipulation by the political branches.’19

Judicial independence is the most fundamental aspect of separation of powers doctrine. Sir Brennan observed that ‘judicial independence exists to serve and protect “the governed” or, in simpler words, the community.’20 The term ‘judicial independence’ is a widely acknowledged term and the Hon J J Spigelman refers to the Article 10 of the Universal Declaration of Human Rights (1948) to explain judicial independence.21 The Article proclaims ‘everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal.’22 The keyword here is ‘independent’ and this accords with the doctrine of separation of powers that it should be separated from other branches of the government. If judicial independence is damaged because of external criticisms, the courts integrity would be destabilised and lose conformity by the people. Sir Brennan states that if judicial independence is destroyed, the foundation of the rule of law is also destroyed23 simply because court would not be efficacious in providing independent decisions. Sir Brennan and Fraser concludes, ‘the rule of law must stand... against the power of public opinion and those who might influence it’24 and ‘it is essential that the courts...not be drawn into direct political controversy’25 as the functions conferred upon the judiciary will be affected.

The last reason why courts should be free from political criticisms is to preserve judicial impartiality. Although the Hon David Ipp says ‘the judiciary is conditioned to believe that to act other than impartially is essentially evil and inimical to a code of conduct’, 26 Campbell and Groves saw that ‘recent misuse of power to attack judges have made them cautious about mechanisms of compliant that enhance the risks of political, media and special interest involvement in the process’. 27 Sir Brennan and Hon Ipp concludes, ‘popularity of decisions is no criterion of the true discharge of judicial duty’28 and ‘subjective judicial decision-making based on political or social or philosophical beliefs leads to unpredictable and arbitrary results’29 and there arises the question of judicial impartiality. Consider a hypothetical illustrating how judicial decision-making and the impartiality of the court is damaged. A child rapist avoids being sentenced because under the rule of law, absence of concrete evidence precludes liability and enforcement. The prominent Australian news providers extensively cover the decision. Consequently, the court is criticised for placing local people in a state of fear concerning the safety of their children. If the court is forced to sentence the child rapist for the sake of societal wellbeing, its judicial integrity and impartiality is lost in the process and may be consequently ‘accused of judicial activism’30 for ‘using judicial power for a purpose other than that for which it was granted’. 31 Furthermore, judicial independence and public confidence would be significantly undermined if the media portrays the court as deciding cases in a manner which rejects the majority’s interests. Impartiality between the parties, procedural fairness and a rigorous application of the law manifest the judicial integrity32 and as a consequence, there could be decisions that do not favor the society. Impartiality, as Lord Devlin remarked, is the ‘supreme judicial virtue’33 and therefore, political criticisms or comments from external sources should not interfere with the judicial decision-making in order for the courts to make fair decisions.

It is essential that courts are not drawn into a political fray; where the decisions are criticised. Courts are a supreme body that should not be affected by any external sources. It is sovereign in the sense that supremacy of individual will is suppressed by the supremacy of the rule. However, that supreme virtue is protected by at least three aspects that are judicial independence, judicial impartiality and public confidence. These three qualities are distinct but they are ultimately linked to and dependent on each other along with the foundation for the rule of law. Lastly, a brief discussion of doctrine of separation of powers in Australia and concluded that the judiciary should be left to exercise their independent responsibilities. Throughout this essay, it was firmly stated that political criticism could potentially destroy the foundation for rule of law and the three qualities and thus diminishing the courts’ power to conduct judicial functions.

Hon Michael Kirby, ‘Judicial activism? A riposte to the counter-reformation’ (2004) 24 
Daryl Williams, ‘Judicial Independence and the High Court’ (1997-1998) 27 Western
Australian Law Review 140, 15.
Greg Craven, ‘Chapter Nine: Reflections on Judicial Activism: More in sorrow than in anger’ (speech delivered to Samuel Griffith Society’s ninth Conference, Mercure Hotel, Perth, 24 October 1997) <>.
Hon Michael Kirby, above n 1, 225.
Greg Craven, above n 2.
Hon Michael Kirby, above n 1, 225.
Denise Meyerson, ‘The Rule of Law and the Separation of Powers’ (2004) 4 Macquarie Law Journal 1, 1.
Hon C S C Sheller, ‘Judicial Independence’, (speech delivered at the Annual Conference of the Industrial Relations Commission of New South Wales, Sutton Forest, 3 May 2002).
10 Daryl Williams, above n 2, 151.
11 Hon Gerard Brennan, ‘Courts for the people- not people’s courts’, (speech delivered in The Inaugural Deakin Law School Oration, 26 July 1995) <>.
12 Malcolm Fraser, ‘The courts must rule, above and beyond the political fray’, The Age (online), 12 September 2011 < rule-above-and-beyond-the-political-fray-20110911-1k44d.html>. See also C S C Sheller, above n 8.
13 Hon Gerard Brennan, above n 11.30 Margit Cohn and Mordechai Kremnitzer, ‘Judicial Activism: A multidimensional model’ (2005) 18 Canadian Journal of Law and Jurisprudence 333, 334.
14 Hon C S C Sheller, above n 8.
15 Hon David Ipp, ‘Maintaining the Tradition of Judicial Impartiality’ (2008) 12 Southern Cross University Law Review 87, 98-99.
16 Malcolm Fraser, n 12.
17 John Alvey and Neal Ryan, ‘The Separation of Powers in Australia: Implications for the state of Queensland’ (speech delivered at 53rd Australasian Political Studies Association Conference, University of Otago, Dunedin, New Zealand, 28-30 September 2005.
18 Ibid.
19 Denise Meyerson, above n 7, 3.
20 Hon Gerard Brennan, above n 11.
21 J J Spigelman, ‘Judicial Independence: Purposes and Threats’ (speech delivered in The 7th Worldwide Common Law Judicial Conference, London, 30 April 2007.
22 Ibid.
23 Hon Gerard Brennan, above n 11; J J Spigelman, above n 14.
24 Hon Gerard Brennan, above n 11.
25 Malcolm Fraser, above n 12.
26 Hon David Ipp, above n 15, 91.
27 F Campbell, M Groves, ‘Attacks on judges under parliamentary privilege: A Sorry Australian Episode’ (2002) Public Law Review 626, 626.
28 Hon Gerard Brennan, above n 11.
29 Hon David Ipp, above n 15, 95.31 John Dyson Heydon, ‘Judicial Activism And The Death of Rule Of Law’ (2003) 47 Quadrant 9, 10.
32 Hon Gerard Brennan, above n 11.
33 Lord Devlin, ‘Judges and Lawmakers’ (1976) 39 Law Reports 1, 4.


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