(Open Letter to the Attorney-General, Minister of Justice, Minister
for Courts, and Associate Minister of Justice)
Dear Mrs. Te Heuheu, Mr. Power, Mr. Finlayson
and Dr. Worth,
A report in the New Zealand Herald (http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10566651)
quoted an American Feminist as saying that, in New Zealand,:
"... the Ministry of Justice ... refused to require judges
to undergo family violence training because it would undermine "judicial
independence".
In that context, I would like to bring to your attention, and ask you
to comment on, the constitutional status and constitutional implications
of the existence and activities of the Institute
of Judicial Studies – particularly in relation to its teaching
judicial officers material that goes under the heading of so-called
"Gender Equity", which I have reason to believe includes material
on (for example) family violence which is slanted in an anti-male direction.
You will of course be aware that simply assuming that women are disadvantaged
(in any sector of society), and then giving them the funding and access
to power to enable them to prove it, simply results in the apparent
justification of the initial assumption, since men's advocates have
never been given a hearing. The Natural Justice principle involved here
is Audi Alteram Partem.
I have recently made a (renewed) request to make a presentation to
judicial officers on the topic of Gender Equity, in order to balance
the anti-male presentations which the Institute of Judicial Studies
has arranged on this topic. I then received from the Institute of Judicial
Studies a two-line letter, which simply stated that they "currently
have no plans" to conduct a seminar on Gender Equity. There appear
to be no Democratic constraints on the Institute of Judicial Studies'
power to start, stop, and then to restart series of seminars which are
designed to inculcate in judicial officers a set of beliefs on social
policy matters. How can lawyers in Court adequately represent their
clients if and when they need to pursue a line of argument which has
been argued against in private to the judge hearing the case, in the
context of a judicial education seminar?
My Communication to the Human Rights Committee
under Optional Protocol to the International Covenant on Civil and Political
Rights, shows how I have been trying for some time both to investigate
and to participate in the activities of the Institute of Judicial Studies
with respect to their notion of Gender Equity. I received a favourable
ruling as to his jurisdiction from a former Chief Ombudsman, which allowed
me to find out the names of people who had given presentations to judicial
officers on Gender Equity. A later Chief Ombudsman reversed that decision,
denying me the opportunity of finding out what actual material had been
presented to judicial officers about Gender Equity – short of
taking the Chief Ombudsman to court.
More recently, I have come across a copy of the materials presented
to judicial officers in the course of the Judicial Seminar on Gender
Equity, which was held at Rotorua
in May 1997, and which was a forerunner to the creation of the Gender
Equity programme of the Institute of Judicial Studies. What I found
outrageous about these materials – apart from their one-sided
and propagandistic nature – was the fact that they hardly mentioned
the term Gender Equity, and did not define it. In other words,
the materials were nothing more than a grab-bag of topics that some
Feminists felt like brainwashing our judges about. The topics ranged
from the meta-theoretical through the theoretical to the substantive.
What I mean by that is that there was a presentation on how difficult
it was to prove gender bias, presentations on gender bias in the law
and society in general, and presentations on the substantive issue of
Domestic Violence.
My understanding of the New Zealand Constitution is that there are
three branches of Government: the Executive, the Legislature and the
Judiciary. I would also suggest including the media, the unions and
the education system as branches of Government, but I will leave that
point aside in the current context. The function of the judiciary is
to decide cases which are brought before judicial officers. Issues of
substantive policy are the preserve of the Executive and Parliament,
which are under democratic control. Education is also the preserve of
the Executive and Parliament.
No doubt it would be argued that for the Executive and Parliament to
control the education of judicial officers would undermine the independence
of the Judiciary. However, no matter who controls the education of judicial
officers, there is scope for capture by particular ideological tendencies,
such as simplistic Feminism, as has indeed already occurred. At least
the Executive and Parliament are under democratic control, and clearly
subject to the Official Information Act. The Institute of Judicial Studies,
on the other hand, has been fighting tooth and nail to keep secret the
ideological brainwashing which it clearly has been subjecting judicial
officers to. This not only undermines the independence of the judiciary
but also strikes at the heart of the Democratic principles which underlie
our Constitution.
As I see it, there are four options here:
