SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 2004: IMPARTIALITY IN JUDGING AND THE PASSIONS OF MANKIND

• Citation: (2005) 17 SAcLJ 1
• Author: Sian ELIAS, GNZM LLB (Hons)(Auckland), JSM (Stanford); Chief Justice of New Zealand.
• Date: 01 December 2005
• Published date: 01 December 2005

The Right Honourable Dame Sian Elias, Chief Justice of New Zealand, delivered the Eleventh Singapore Academy of Law Annual Lecture on 3 November 2004. In her speech, the Chief Justice made the point that impartiality in judging is the critical condition upon which democratic societies accept the exercise of authority by non-elected judges. While impartiality and the appearance of it are important, the emphasis on appearance should be kept in check. Ultimately, the obligation to bring an open mind to judging is the individual responsibility of the judge.

The law has so watchful an eye to the pure and unbiased administration of justice, that it will never trust the passions of mankind in the decision of any matter of right.1

1 Impartiality in judging is the essential attribute of the judge. It is the burden of the judicial oath common to my jurisdiction and to yours. Its observance ensures that, when judging, the only allegiance of the judge is to do right according to law to the parties.

2 Why impartiality is fundamental was explained by Lord Denning MR:2

Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: “The judge was biased.”

The demonstration of impartiality in judging serves a more important function than to assure the parties that the judge has no personal interest in the outcome. It is the condition on which a democratic society accepts the exercise of authority by judges who are not elected and not directly responsible to the elected branches of government. Since the assurance of

constitutional government requires access to independent courts, the maintenance of public confidence in the impartiality of the judiciary is critical to our modern democracies.

3 Perhaps because of the need to ensure public confidence, it has long been appreciated that the appearance of partiality is destructive in itself. Demonstrating that a judge was actually biased may be difficult. But if the circumstances leave “right-minded people” suspicious, such suspicions may be dangerously corrosive. It is considerations such as these that led Lord Devlin to say that, “within the context of service to the community”, it is the appearance of impartiality, rather than the reality of impartiality, that is the more important:3

The judge who gives the right judgment while appearing not to do so may be thrice blessed in heaven, but on earth he is no use at all.

4 So, appearances matter. But they are not everything. Everyone seems to know Lord Hewart’s famous declamation that “justice should not only be done, but should manifestly and undoubtedly be seen to be done”.4 It seems seldom to be off the lips of those critical of particular court decisions. It sounds very fine. But such vehemence does not greatly assist in determining a workable test for partiality. And the heightened vigilance and indignation it encourages may itself be destructive of public confidence.

5 The risk is heightened if judicial function is not well understood and if the judiciary is called upon to decide controversial questions on which community opinions are divided. Those are the conditions in a number of common law jurisdictions today, including mine. This is not a new phenomenon. Modern human rights litigation carries particular risks and opens up what Carol Harlow has called “campaigning litigation”.5 But in reality the revitalisation of administrative law and open-textured legislation which confers wide discretion on judges have brought the judiciary increasingly into areas of public controversy over the past 20 years.

6 What the background of controversy means is that the background, attitudes, and opinions of judges are now under public scrutiny, perhaps as never before. At the same time, understanding of the role of the judge seems to have diminished. The fact that “[w]e must rely

on our conduct itself to be its own vindication”6 makes it difficult for the public to gain a proper understanding of controversial judicial decisions through a modern news media dominated by sound bites and flamboyant headlines. One result has been a proliferation in claims of presumptive bias against judges.

7 It is time to take stock of where all this is going. Some of the more absolutist statements about community perceptions of impartiality being more important than the reality, were made in a simpler time. Perhaps sensitivity to popular clamour based on the standards expected of Caesar’s wife needs to be tempered. It may be that greater attention to institutional safeguards to promote impartiality in decision-making is a sounder response than recusals and overrulings because of assessment of appearances.

I. Shifting expectations

8 The judges who declared that appearances were so important, lived in much less squeamish times than ours. They had no thought that those taking up judicial office had to be “ideological virgins”.7 And they were not. Lord Hewart, described in The Oxford Companion to English Law as “perhaps the worst Chief Justice since the seventeenth century”, was an uninhibited political figure, who thrived on controversy, writing on all subjects ranging from electoral reform and capital punishment to democratic theory and licensing laws.8

9 In England, it was not until the beginning of the 20th century that appointments to the High Court Bench were generally drawn from the leading members of the practising Bar. Before then, appointment was explicitly the reward for political service. Lord Salisbury, as premier, was quite candid about the process:9

It is … the unwritten law of our party system; and there is no clearer statute in that unwritten law than that the rule that party claims should always [weigh] very heavily in the disposal of the highest legal appointments. In dealing with them you cannot ignore the party system

as you do in the choice of a general or archbishop. It would be a breach of the tacit convention in which politicians and lawyers have worked the British constitution together for the last two hundred years. Perhaps it was not an ideal system — some day no doubt the Master of the Rolls will be appointed by a competitive examination in the Law Reports, but it is our system for the present: and we should give our party arrangements a wrench if we threw it aside.

10 It was not until the 1930s that promotion from the Court of Appeal to the House of Lords became usual. Before then, the view was taken that the appointment of those who had held political office was preferable because the disputes handled in the House of Lords, while legal in form, were political in fact.10 Chief Justices in England were appointed from Attorneys-General until 1940.

11 In appointing judges from such backgrounds, it is clear that presumptive bias was not thought to attach to a judge because of his activities before appointment. At times when political service before judicial office was usual, judges were not expected to be colourless technocrats who had stood aloof from the currents of the times.

12 Moreover, a conceptual separation between judicial conduct and conduct off the Bench seems to have continued after appointment. Until comparatively recently, English judges seemed to have no qualms about corresponding with newspaper editors about current issues of the day. Until very recently, participation in legislation or the parliamentary debates in the House of Lords was not thought to disqualify a judge from later sitting in a case arising from the legislation or touching on matters raised in the debate.

13 The extent to which judges felt uninhibited by their legislative activity is illustrated by the war-time case of Continental Tyre and Rubber Company (Great Britain), Limited v Daimler Company Limited.11 There was a public outcry when the Court of Appeal refused to lift the corporate veil to show that Continental was controlled by a German parent company. Judges wrote letters to the editor of The Times in favour of the judgment and against it. Lord Halsbury introduced a Bill in the House of Lords to reverse the decision. It was supported by Lord Wrenbury (Buckley LJ), who had dissented in the Court of Appeal. It was also supported by Viscount Mersey. Daimler then appealed to the

House of Lords. Lord Halsbury, aged 93, presided. Viscount Mersey sat. The Court of Appeal was overturned.12

14 What are we to take of this apparent dissonance between the near-contemporary statements of the need to ensure that justice is “manifestly and undoubtedly” seen to be done and the personal views indicated by the legislative activity of Lord Halsbury and Viscount Mersey? It is not an answer that this was war-time aberration. It is our perception of what constitutes the appearance of partiality that has changed.

15 Engagement in politically partisan activities, even in relation to the controversy in issue, was not formerly thought to overcome the expectation that, in judging, the judge would be dispassionate and would adhere to the judicial oath. Only direct pecuniary interest in the outcome automatically disqualified a judge, because it infringes the basic rule that no man can be a judge in his own cause.13 No other automatic category in which bias would be presumed was recognised. Short of pecuniary interest, circumstances raising a real danger of bias were required.

16 Before 1999, the cases in which such danger was found to exist generally concerned justices or their clerks with conflicts of interest in the outcome of the proceedings. The holding of opinions, friendships, political partisanship, and previous professional connections were insufficient to overcome the presumption of judicial impartiality described by Blackstone:14

By the laws of England also, in the times of Bracton and Fleta, a judge might be refused for good cause; but now the law is otherwise, and it is held that judges and justices cannot be challenged. For the law will not suppose a...