Open and informed debate on judicial decision making is good for justice
The New Zealand Bar Association welcomes the decision by the National Standards Committee of the New Zealand Law Society to end its own motion investigation of barrister, Catriona MacLennan, following her criticism of a District Court Judge's sentencing remarks. The Association says freedom of debate about judicial decisions is crucial to maintaining a just society and upholding the rule of law.
“The freedom to criticise judicial decisions is a fundamental right in a free society and an important means of protecting the rule of law,” says NZBA President Clive Elliott QC.
“Lawyers should speak out when they see injustice in our system and should not be discouraged from doing so. Everyone, including barristers, has the right to voice their concerns about judges who may express views that are not aligned with a fair and progressive community seeking equality and diversity. Lawyers are uniquely placed to comment on the application of laws by Judges, and should be able to criticise judicial decision-making within established parameters.”
The National Standards Committee undertook an investigation of Catriona MacLennan when she spoke out about a judge’s sentencing comments in an assault case related to a relationship break-up. The Committee found that Ms MacLennan provided an objective foundation for her statement about the Judge continuing to sit on the bench and had made her statements in good faith and for the benefit of the public in an area in which she was qualified to comment. It therefore decided to take no further action on the matter.
Mr Elliott says while barristers should have the right to speak up, they do have the added responsibility to make comments that are measured and informed and to do so in a way that upholds court processes, and public confidence in the judiciary, and respect for the rule of law.
As with any fundamental right, the right to freedom of expression can be appropriately balanced against other fundamental principles for a modern democratic society. To that end, it is also crucial that any comments are made with the necessary context to ensure accuracy and regard to any ongoing judicial processes, such as appeals.