National Blog of New Zealand

Garth McVicar recently made comment that New Zealand ought to adopt a system of judicial election.

Presently judicial appointment is governed merely by convention. Candidates are drawn from a pool of experienced senior counsel and appointed by the Executive after a not insignificant amount of vetting. This longstanding approach seeks; amongst other aims, to ensure the impartiality of the judiciary.

Judges need to be free from fear or partisan politics in delivering their judgments in order to do justice between the particular parties before the court.

Mr. McVicar’s suggestion that the election of judges is the only way to hold the judiciary to account is patently untrue. It seems only to emphasise McVicar’s misunderstanding of the purpose of the judicial branch of government.

There’s an air of hypocrisy and sophistry in suggesting that judicial elections will ensure accountability, if we unpack McVicar’s comments this writer believes what is actually saying runs something more like this:

“We need more ‘hanging judges’. We also need a way of removing any judge who in the public’s eyes fails to live up to the ‘popular’ mandate for more punitive sentencing”

Such a system runs contrary to the impartial application and interpretation of the law that the courts exist to provide. If judges are elected it would result in a more politically charged judiciary. The very nature of the political process could jeopardise the proper execution of judicial office “without fear or favour, affection or ill will.”

The policy that McVicar espouses has nothing to do with accountability and everything to do with injecting bias and prejudice into the courts.

Edward Ryan, former Chief Justice of the Wisconsin Supreme Court noted that the judiciary “represents no man, no majority, no people. It represents the written law of the land… it holds the balance, and weighs the right between man and man, between rich and poor, between weak and the powerful.”

Policy and value judgements are not to be done by stacking the bench, they are the realm and purpose of the legislature.

Harsher sentencing does not work. Criminals do not rationally weigh up potential sentences - the impetuses for criminal offending are far more varied and complex.

It’s time McVicar was ignored, his comments clearly illustrate the ill considered nature of his viewpoints. Why does this man remain the go-to guy when there are so many other people; both professional and academic advocating for a fair and effective criminal justice system?