Heather du Plessis-Allan: Judges should not be above criticism

Let's talk about judges for a minute. 

So, the Law Society today has come out in defence of judges and in the face of all the criticism that they've been copping lately. The Law Society has asked that we please stop criticising the judges. It's in an opinion piece written by Fraser Barton, who is the president of the Law Society. He says the way that we're talking about the judiciary and their decisions might be harmful to this important institution. He says we are wrong to accuse especially the Supreme Court of Judicial activism. And, if we carry on the way that we are, it might end up with people losing confidence in the judiciary, which means that they won't trust the courts to look after them. 

Now, in a nutshell, I think what Fraser is arguing is that it is absolutely fine to criticise judges decisions, but we're not ok to criticise the judges themselves - including by using phrases like activist judges. 

Look, as a general rule, I think Fraser's got a point here, right? 

You should always try to play the ball and not the man, but sometimes the man is the problem, right? Some judges are going to be great and some are just going to be rubbish and that's how it is in any profession. And it is ok to say that person there is rubbish at their job and equally some judges will follow the rules and some judges will push the hell out of the boundaries.  

Some judges will do that consistently. 

They are called activist judges. 

I think it's also ok to point that out... otherwise, what are you supposed to do? Pretend it's not happening?  

Just look at every decision coming from a particular judge, say that decision's a bit dodgy, that decision is a bit dodgy, and that decision is a bit dodgy... but not point out that they're all coming from exactly the same judge and not point out that they're all coming from exactly the same court. 

For example, the Supreme Court - the Supreme Court is the problem right now. 

The Supreme Court is a very, very serious concern to a lot of commentators who are writing opinion pieces about this. So, basically in a nutshell, what they're doing is they're making law and they're introducing Tikanga Māori into existing law, which is a discussion for another day about how weird and wild that is. But it's actually the job of parliament to be making law. Not so much the Supreme Court judges who are not above criticism, right? 

We criticise absolutely everybody - we criticise the police, we criticise the hell out of the MP’s, we criticise each other in the media, criticise the public servants, we get criticised.  

That's healthy, that's how it should be. 

Otherwise, it's just a free for all, isn't it? 

What is unhealthy is pretending that there's a group of people who are so special that they are somehow above criticism. They are not above criticism, not when they're actively changing the laws in the country, which is not their job. 

They are absolutely 100 percent open to being criticised.

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