Tuesday, May 11, 2010

Sedition for judges

In 2007, the government repealed the archaic offence of sedition, consigning it to the dustbin of history. But while we are now free to criticise our government, political system, politicians and head of state, there is one group we are still not free to criticise: judges. In a post on the Justice Wilson saga, Russell Brown points out that "scandalising the court" is still a (judge-created) offence in New Zealand:

great care must always be taken in the way in which the courts' decisions are criticised. Anything reported which is likely to lower the authority of the court or bring it into public derision and contempt may be held to scandalise the court.

For example, you may criticise a judgment on the grounds that it is inconsistent with other judgments; or that it is out of touch with the public mood regarding the crime in question. That kind of criticism, strongly but fairly argued, should not be held to scandalise the court. However, the suggestion that a judge deliberately made an unjust decision, or that he was biased, or drunk, or incapable of carrying out his job, would be held to scandalise the court. You may discuss the issue, but you may not attack the person.

As with sedition, this legal protection is either unnecessary or undeserved. The fairness, impartiality and competence of our courts and judges should speak for itself - and if it doesn't, then it is not worthy of any legal protection. The only judges this rule protects are those who are in fact unjust, biased, drunk, and incompetent. Prohibiting criticism of such judges may "protect the reputation of the court", but only in the same way that covering up for paedophiles protected the reputation of the Catholic Church. And as with the Catholic Church, it leaves those it protects free to continue their abuse.

This rule is a relic of feudalism. It dates from an era where peasants were forbidden to criticise their "betters". We no longer live in that era, and this protection has no place in the modern, democratic age. It should be repealed. If judges suffer unfair attacks on their reputations, they can use defamation law, just like anybody else.

(The same BTW goes for Parliament, which still officially regards it as a crime to "[reflect] on the character or conduct of the House or of a member in the member’s capacity as a member of the House" - which is basically any comment on politics or politicians. Its self-serving law for self-serving people, and it has no place in our democracy).