Law and justice are often seen as a contradictory terms. Laws are made by elected politicians and interpreted by unelected judges. The judges are appointed by politicians. Politicians have to submit themselves to the will of the people for re-election every four years in NSW. Judges are appointed for life on generous taxpayer funded salaries, conditions, allowances and pension schemes.
But, as the recent case of Justice Marcus Einfeld demonstrates, they are also subject to the same human fallibilities as we all are. The fact that Marcus Einfeld, now a convicted criminal serving a prison sentence, will continue to receive a taxpayer funded pension in excess of $200,000 a year indexed for life, indicates that the judiciary have done very well for themselves in negotiating their pay and conditions.
‘Politically correct appointments’ such as controversial NSW magistrate Pat O’Shane also serve to undermine public confidence against the justice system. We expect our police to uphold the law and protect us from criminal activity but their public humiliation by Pat O’Shane in the courts undermines public confidence in the system. People feel disempowered because such people are appointed for life and there is nothing they can do about it.
When these fallibilities are exposed in the media it begs the question as to whether judges should continue to be appointed by politicians for life or elected by voters and therefore be accountable to them. There are obviously pros and cons of both arguments.
In America most States have an ‘uncontested retention election model’. This is a democratic system where lawyers interested in seeking an appointment to the judiciary apply to a non-partisan Judicial Commission for an appointment. The commission interviews all applicants and submits three names to the State Governor. When a vacancy occurs, the Governor appoints one of these three to the Court they applied for.
After serving one year on the Bench, these newly appointed judges must be confirmed in their position by voters using an ‘uncontested retention vote’. To assist voters in their decision, lawyers conduct and evaluation survey and rate the judges for their performance such as fairness, legal analysis skills, diligence and decisiveness. The results of the survey are made public. Once retained by the voters, judges have to go through the same process every six years thereafter.
Such a system would require change to our constitution and would be resisted by civil libertarians because of the threat it would present to unaccountable left-wing members of the judiciary who deem themselves to be superior to us ordinary beings.
Bring on the debate!
Tags: Law and Order, My Opinion, Policy
