Thirty years on: the Beijing Statement and judicial independence revisited

Tēnā koutou, tēnā koutou, tēnā tatou katoa

As is customary in my country I have greeted you in te reo Māori, the language of the indigenous people of Aotearoa/New Zealand.

I thank our hosts for inviting me and for organising what I am sure will be a most successful conference. I congratulate LAWASIA for its work in the region supporting and promoting the rule of law. As the United Nations website says, the rule of law is fundamental to relations between states, as well as for their internal development.²

The World Justice Project defines the rule of law as a durable system of laws, institutions, norms, and community commitment that delivers four universal principles:³

1. 1. 1.   accountability: where the government as well as private actors are accountable under the law;
      2.   ​just law: laws that are clear, stable and publicised and which ensure human rights, including property rights;
      3.  open government; and
      4. ​accessible and impartial justice: justice that is delivered in a timely fashion by competent, ethical, and independent judicial officers “who are accessible, have adequate resources, and reflect the makeup of the communities they serve”.

This is what is termed a “thick” conception of the rule of law, where adhering to the rule of law requires promoting and protecting substantive values like human rights. By contrast, “thin” or formal notions of the rule of law do not address the content of laws but merely include requirements such as the manner in which laws are promulgated, that they are clear, not retrospective and that nobody is above the law.⁴

Under both conceptions of the rule of law, states are nevertheless bound to meet the human rights obligations contained in domestic legislation or under their constitutions.⁵ They also must abide by their human rights obligations under international law, whether by treaty or under customary international law, and in particular peremptory norms.⁶ Judges will be responsible for upholding these obligations in cases that come before them. Regarding treaties, this may be because treaty obligations will be directly applicable in monist states. Or, in dualist states, because they are incorporated into domestic law or are otherwise applicable (for example in the interpretation of statutes).⁷ Further, even in dualist states, customary international law should have direct effect without need for incorporation.⁸ In any event, domestic law may have similar effect, given the common law principle of legality (whereby, if possible, legislation ought to be interpreted in accordance with fundamental common law norms).⁹

For a country to be properly governed by the rule of law, those who enforce the law must do so rationally, fairly and impartially. This means that the Beijing Statement of Principles on the Independence of the Judiciary in the LAWASIA Region (the Beijing Statement) is a very significant contribution to the rule of law in our region.

The Beijing Statement was adopted by the Sixth Conference of the Chief Justices of Asia and the Pacific in 1995, where it was signed by 20 Chief Justices, including the then Chief Justice of New Zealand, Rt Hon Sir Thomas Eichelbaum. The Beijing Statement was revised at Manila in 1997 and is now signed by 32 Chief Justices in the region.¹⁰ It was a great achievement to reach agreement on the Statement among so many judicial leaders, despite the differences in legal systems and traditions and in social and cultural norms. As the then Chief Justice of Western Australia, Hon David K Malcolm, wrote in his foreword to the Beijing Statement:¹¹

The Statement is a tribute to the determination of all signatories to leave aside differences in both legal and social traditions to formulate a single Statement on the Independence of the Judiciary.

Article 1 of the Beijing Statement recognises that the “judiciary is an institution of the highest value in every society”. At the core of the judiciary’s value to society is judicial independence. The fact that so many Chief Justices signed the Beijing Statement in 1985, and that more have signed it since, is strong evidence of the commitment to judicial independence and to the rule of law in our region.

Rule of law trends

There are, however, worrying global trends. In the seven years from 2016 to 2023, the rule of law has weakened in 78 per cent of countries studied in the World Justice Project Index. The three biggest contributors to the overall decline were declines in the factors measuring constraints on government powers, fundamental rights and criminal justice. The decline was larger in countries which already had a weaker rule of law score than in countries with stronger rule of law scores.¹² There are also numerous instances around the world where judicial independence, the rule of law and human rights are currently under threat.¹³

I have had personal (albeit second-hand) experience of one of the most devastating instances of the breakdown of the rule of law and judicial independence during my time as President of the International Association of Women Judges (IAWJ).¹⁴

For the last three years, the IAWJ has been working to rescue the Afghan women judges after the fall of Kabul to the Taliban in August 2021 placed them in mortal danger, both from the Taliban¹⁵ and from the criminals and terrorists released by the Taliban seeking revenge against those who sentenced them.¹⁶ The IAWJ had a long association with the Afghan women judges and their women judges’ association. We would not have been true to our values if we had abandoned them.¹⁷

At the same time, the IAWJ has watched with increasing horror the rights of women and girls in Afghanistan being eroded to the extent that they have effectively been eliminated from public life. There is no right to education above primary-school level and major restrictions have been imposed on freedom of movement,¹⁸ the right to work, and the right to seek medical attention. According to the latest edict, women must not even be heard to speak in public.¹⁹

In terms of the effect on the justice system, the Taliban annulled all preceding laws and regulations that were aligned with Afghanistan’s international human rights commitments and that upheld the political and administrative independence of the judiciary, including the constitution and the penal code.²⁰ There is now no written document governing the appointment of judges, their authority or their accountability. The current judges are all male and are primarily madrassah-educated Taliban members who have no formal legal training. Further, “a cadre of muftis (religious-educated elders) [has] also been formally introduced into the legal system”.²¹ These “white beards”²² have “the role of investigating and reviewing cases, and also advising judges on how to rule and what punishments to deliver”.²³

Afghanistan now operates under a summary justice system, where most cases are resolved swiftly, with no independent prosecutors investigating and presenting the facts, and essentially with no appeal rights. Sharia law, which the Taliban claim to follow, is drawn from the Quran and hadiths, but also involves individual interpretation in its application.²⁴ As a result, the judges often give inconsistent interpretations and applications of broad Islamic rules, superseding the rule of law. The Taliban interpretation of Sharia law has also resulted in serious human rights violations including indefinite detention, torture and extrajudicial killings, as well as the return of public whippings. It is not surprising in light of this that Afghanistan was one of three countries with the lowest overall rule of law scores in the World Justice Project Rule of Law Index 2023.²⁵

Need for vigilance

Afghanistan is obviously an extreme example of the breakdown of the rule of law and the independence of the judiciary, but it is also an object lesson. The breakdown can be sudden and devastating, as in Afghanistan, but it can also operate by stealth and by stages which, left unchecked, can have similar results.²⁶ We need to be ever vigilant and take proactive steps to promote and defend the rule of law and judicial independence.

On 13 August 1997 (two years after he had signed the Beijing Statement), Chief Justice Eichelbaum gave the inaugural Neil Williamson Memorial Lecture entitled “Judicial Independence Revisited” in Christchurch, New Zealand.²⁷ He stressed the importance of maintaining public confidence in the judiciary and in that regard stressed that the judiciary must be prepared to revise its own traditions where appropriate and also ensure appropriate accountability. As he said:²⁸

The New Zealand judiciary has an enviable history of integrity. No institution however, can afford simply to rest on its history. Recent events which have detracted from the judiciary’s reputation have shown that it is more important than ever that the judiciary should work on its credibility. It will not be enough to be squeaky clean. If public confidence is to be retained the judiciary must show a willingness, where appropriate, to amend its traditions, philosophies, and processes so as to keep them appropriate to current conditions. To do so without detracting from the traditional qualities expected of Judges and a judiciary is intensely difficult but it is a challenge to which the judiciary, Government, the media and the public must rise.

Seven years later on 30 July 2004 his successor, Chief Justice Sian Elias, delivered another lecture in the same series (also in Christchurch) entitled “‘The Next Revisit’ Judicial Independence Seven Years On”.²⁹ She began by saying that “public understanding and confidence in the institution [of the judiciary] is the only protection for judicial function”.³⁰ She then outlined some of the progress made on the issues identified by her predecessor, including a mentoring scheme for new judges and the institution of a code of conduct for judges.³¹ She did not favour any greater supervision of judges or the erosion of the independence of judges from each other and the Chief Justice. In her view, judicial independence, by which she meant “the allegiance of the Judge in judging only to the law and to the effort of coming to the best decision he can – is principally an individual virtue”.³²

In terms of the next seven years, the Chief Justice saw a need to ensure more institutional independence for the judiciary³³ and stated that the “principal challenge” was the maintenance of public confidence.³⁴ The speech was given at a time of significant institutional change. The Supreme Court of New Zealand/Te Kōti Mana Nui o Aotearoa had just been established to replace the Privy Council and had had its first ceremonial sitting on 1 July 2004.³⁵

The titles of these two addresses and of my address are telling: judicial independence must be revisited again and again, both in particular jurisdictions and by the international community.³⁶ This is an appropriate time to mention an initiative of the International Association of Judges to have January 11 named as the International Day of Judicial Independence.³⁷ January 11 was chosen because it was on that date in 2020 where judges from all over Europe joined Polish judges and the public in Warsaw at what was dubbed the “1000 Robes March”, where more than 30,000 people marched in solidarity with the Polish judiciary protesting measures that gravely compromised judicial independence.³⁸

It is a heartening sign of the value placed on judicial independence that Poland has not been alone in having public protests in support of the autonomy of the judiciary. Recent protests in Israel and Mexico over government overhauls to the judiciary are similar examples of the public rallying behind judges to support judicial independence.³⁹

Access to justice

Before discussing the elements of judicial independence in more detail, it is worth stressing that the vision of a world that respects the rule of law, human rights and judicial independence is impossible to achieve if there is not meaningful access to justice. As discussed above, one of the aspects of the rule of law under the World Justice Project’s definition is accessible justice.

The 2030 United Nations Agenda on Sustainable Development is based on a vision of “[a] just, equitable, tolerant, open and socially inclusive world in which the needs of the most vulnerable are met”.⁴⁰ I note in particular Sustainable Development Goal 16:⁴¹ “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all.” Target 16.3 of that Goal is “Promote the rule of law at the national and international levels and ensure equal access to justice for all Indicators” and some of the Goal’s other Targets are also directly relevant to access to justice.

According to the World Justice Project, between 2022 and 2023 civil justice scores around the world in two out of three countries fell due to longer delays, weaker enforcement and declining access and affordability.⁴² Criminal justice systems deteriorated in over half of the countries in the index including in terms of timely and effective adjudication and due process of law.⁴³ Justice delays are increasing in a majority of countries, both in civil and criminal justice systems.⁴⁴ It might be a cliché, but the old adage that “justice delayed is justice denied” rings true here. The longer a legal problem is left unresolved the greater its toll on litigants waiting for justice.⁴⁵

And there are a huge percentage of people around the world who have no meaningful access to justice at all. In 2019, a high-level taskforce estimated that 5.1 billion people —  two-thirds of the world’s population — lack meaningful access to justice.⁴⁶ This two-thirds figure comes from combining three dimensions: “extreme conditions of injustice”, those with “justice problems they cannot resolve” and those who are “excluded from the opportunities the law provides”.⁴⁷

There are a number of striking figures contained in this report and a 2019 World Justice Project report which gives the same 5.1 billion figure:⁴⁸

(a)   1.1 billion victims of non-violent crime and 235 million victims of violence have not reported their victimisation.

(b)   2.3 billion people lack housing or land tenure.

(c)   12 million people are stateless.

(d)   203 million people live in countries with high levels of insecurity and no rule of law.

While up-to-date figures are not available, it seems likely that, if anything, the numbers lacking meaningful access to justice have increased as a result of the COVID-19 pandemic.  People in all countries are affected, but the justice gap is not evenly distributed. Women and children find it hardest to access justice, as do other vulnerable groups, such as those living in poverty, people with disabilities,⁴⁹ and people from minority ethnic communities. There are a number of tragic consequences of this. As of 2019, “of the 40 million people living in modern slavery, more than 70 percent are women and girls”.⁵⁰ Vulnerable populations (“such as disabled persons, the elderly, indigenous persons, and children”) are those who are most likely to lack legal identity.⁵¹ Racial and ethnic minorities are especially at risk of being stripped of their nationality, despite this being a universal human right.⁵²

As an aside I note that, at the end of 2023 it was estimated that there are 117.3 million forcibly displaced people worldwide, with some 47 million children (40 per cent of the total).⁵³ Vulnerable groups are also likely to disproportionately suffer from the effects of climate change, including dislocation.⁵⁴ Dislocation of this magnitude will have an obvious effect on access to justice, not to mention on the human rights of those involved.

The inclusion of the poverty, vulnerability, statelessness, modern slavery, displacement and insecurity/no rule of law metrics are particularly important. These measures highlight people living in “extreme conditions of injustice”.⁵⁵ Such conditions show that lack of access to justice is a problem which stretches beyond (for example) the ability of a litigant to bring a case to court. Huge numbers of people live in conditions where they are deprived of human rights and the bare conditions necessary for existence, let alone the ability to seek justice before a court.

And, still on the subject of vulnerable groups, it is important to recognise that not everyone in the world enjoys the same legal rights. A report provided to the European Parliament in 2020 noted that over 50 countries legally limit women’s right to free movement.⁵⁶ In 34 countries, husbands can deny their wives the right to manage and dispose of marital property.⁵⁷ Women must obey their husbands, by law, in 27 countries and in 16 women can face legal consequences for not doing so.⁵⁸ In 11 nations, sexual violence offenders receive impunity if they marry their victims.⁵⁹ Even seemingly neutral laws and policies can discriminate against women or be applied in ways that favour the status quo in a world where privileged men disproportionately hold positions of power, including in the judiciary.⁶⁰

According to the World Bank, women in 2024 have less than two-thirds of the legal rights available to men.⁶¹ Further, according to the same World Bank report, “nowhere in the world do women have the same legal rights as men in all of the indicators measured [in that report]”. The gap is even wider in practice.⁶² The report refers to this as an “implementation gap”: while the laws of jurisdictions should entail that women have roughly 64 per cent of the rights of men, global economies (on average) established less than 40 per cent of the necessary systems in practice.

It is also important to record that the access to justice gap between genders is not only unjust but is affecting the performance of the world’s economies. Globally, “achieving gender parity in employment and pay could unlock as much as a 20 percent increase in GDP per capita”. Within the Organisation for Economic Co-operation and Development (OECD), if more women were in the workforce, USD $7 trillion could be added to the world economy.⁶³

Facets of judicial independence

I move on now to a more detailed examination of the requirements in the Beijing Statement.  Judicial independence has a number of facets.  Of course, it is possible to list and summarise these facets in different ways.⁶⁴ I list them here, adapting (in slightly altered form) the headings of the Beijing Statement. I then elaborate on the first three of these themes.

1. 1. Impartiality: judges must make decisions based on the law and free from external pressure.⁶⁵
   2.  Appointment: judges must be appointed in a manner that is fair, merit-based and free from discrimination.⁶⁶
   3.  Tenure: judges must be secure in their tenure and employment.⁶⁷
   4. Conditions and resources: judges must be provided with adequate renumeration, terms of service and resources to carry out their function.⁶⁸
   5.  Jurisdiction: the judiciary must have jurisdiction over justiciable issues and the authority to determine which matters are within its competence (in accordance with law).⁶⁹
   6. Administration: judges should have control over the administration of judicial staff, court processes and budgets.⁷⁰
   7. Relationship with other branches: judges must be independent from the Legislature and Executive in the exercise of their powers.⁷¹  

Impartiality

I start with impartiality which is arguably the most important facet of judicial independence. At its core, impartiality entails the ability of judges to decide cases, (as it is rather quaintly put in the judicial oath of my jurisdiction): “without fear or favour, affection or ill will”.⁷² Or, as the Beijing Statement puts it:

3. Independence of the judiciary requires that;

a) The judiciary shall decide matters before it in accordance with its impartial assessment of the facts and its understanding of the law without improper influences, direct or indirect, from any source; …

I make four points about impartiality in modern times: 

(a)             the need for judges to understand and be part of the society in which they judge;

(b)            the need for judges to be aware of, and take steps to counter, possible biases;

(c)             the need for judges to be open to change; and  

(d)            the need for judges and lawyers to counter misinformation and to make sure that the public understands how the justice system works.

Need to understand the society in which they judge

It is important to recognise that it is not possible to judge fairly and to uphold the value of equality before the law if judges do not understand the society in which they judge.⁷³ In the past it was thought that, to be independent and impartial, judges had to separate themselves from society and be “insulated from the controversies of the day”.⁷⁴ Judges traditionally were so far removed from society that they could not identify with many of the people they sat in judgment on.⁷⁵

In practice insulation from society often meant that, as part of the “establishment”, judges of the past judged accordingly. To illustrate this phenomenon, feminist judgments projects have been undertaken in many jurisdictions.⁷⁶ These projects revise famous cases, reconsidering them from a feminist perspective but within the confines of the law as it was at the time.⁷⁷ It may not be possible to reach a different result (although it often is) but reasons can still be reframed to show a greater awareness of the people, and especially the women, who were involved.

One famous example of courts acting to preserve the authority of pernicious social hierarchies is Plessy v Ferguson where the United States Supreme Court upheld a Louisiana law segregating train carriages on the basis of the notorious “separate but equal” doctrine.⁷⁸ There was a minority voice but a lone one and ironically from a former slaveholder from Kentucky who had opposed abolition.⁷⁹ Justice John Marshall Harlan famously wrote in his dissent “Our constitution is color-blind” and that “[t]he arbitrary separation of citizens on the basis of race while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution. It cannot be justified upon any legal grounds.”⁸⁰

In a similarly exclusionary move, nineteenth century courts in the common law world consistently interpreted the phrase “any person” to deprive women of the right to vote, to be elected to office and to become a member of the professions.⁸¹ For example, the England and Wales Court of Appeal held in the 1914 case of Bebb v Law Society that the word “person” in the Solicitors Act 1843 (UK) did not include women, meaning that Ms Bebb could not be allowed to take the preliminary examination to become a solicitor.⁸² This was despite s 48 of that Act stating that words importing the masculine gender would refer to women as well unless the subject or context was repugnant to this construction. This case provides a powerful example of how unlimited adherence to tradition can be detrimental to rights. Great emphasis was placed by the Judges on common law’s long history of refusing to let women practice law. Swinton Eady LJ stated that it was “sufficient to rest this case upon the inveterate practice of the centuries”.⁸³ The Judges were not necessarily endorsing the tradition, but they viewed it as sufficient to dispose of the issue. The same result was also reached in the 1901 (Scottish) case of Hall v Incorporated Society of Law Agents and the 1912 (South African) case of Incorporated Law Society v Wookey.⁸⁴

The law has also been used by colonisers and colonial powers against colonised peoples. A prominent example in Aotearoa/New Zealand is the Native Land Court which, in brief, brought about the widespread alienation of Māori land through the individuation of formerly collective land title.⁸⁵

Countering bias

While we might laugh now at courts holding that women are not persons, we will have our own modern biases which could well appear just as quaint to future generations.⁸⁶ Bias is by definition the antithesis of impartiality and can lead to structural inequities. For example, in Aotearoa/New Zealand, Māori are over-represented in the prison population.⁸⁷ This is partly the product of deprivation resulting from colonisation (as discussed above), but also the result of bias in the system, including policing.⁸⁸ There are a range of strategies which judges can and should use to try to counter their biases.⁸⁹ Judicial education can also play an important role.⁹⁰

Being open to change

To refer back to the points made by Chief Justice Eichelbaum, the judiciary must be open to change, and acknowledge that what has traditionally been done will not always be the best way to do things. One such change that has been mooted to improve access to justice is to make justice more “people-centred”. The phrase “people-centred” is featured in the title of the 2019 World Bank report: Measuring the Justice Gap: A People-Centered Assessment of Unmet Justice Needs Around the World.⁹¹ In a 2023 address to the American Bar Association, the World Bank World Justice Project’s Executive Director Elizabeth Andersen commented that people-centred justice “begins with a mapping of people’s justice needs, the ways in which they solve their justice problems, and the obstacles they face in doing so”.⁹² This can be contrasted with the traditional focus on improving the justice system “from the perspective of institutions”. As Executive Director Andersen put it:

We have asked what do judges, lawyers, prosecutors, and bar associations need to do their jobs better, without fully understanding the needs of the people those institutions and actors are meant to serve.

She highlighted a number of statistics which demonstrate the need for a people-centred approach.⁹³ For example, only 29 per cent of people facing a legal problem sought any form of advice. Most of those who did seek assistance preferred seeking advice from friends or family. Most people do not even recognise their problems as legal in nature. These statistics highlight how a focus only on traditional legal institutions risks neglecting the justice needs of some of the most vulnerable in society, who may not engage with (or even know of) institutional pathways to justice.

I am not suggesting that adopting a people-centred approach to justice is the only necessary change to the justice system. Rather, I am highlighting this example to point out that judges must be open to innovative ideas and new ways of doing things. One innovative project in my country is Te Ao Mārama, the world of light, aimed at introducing solution-focused practices to the whole of the District Court throughout Aotearoa/New Zealand.⁹⁴

This project has various aspects, which I will not summarise fully here. But a very important part of Te Ao Mārama is to bring the community into the courtroom. Community-based organisations have local knowledge which can help in tailoring solutions. They also offer social services and support for those who need them most, whether they are defendants, complainants, victims or family members.⁹⁵

Te Ao Mārama also recognises the importance of input from all those affected by the matters before the Court. It aims to ensure that all court participants, including the parties in family cases, defendants in criminal cases, complainants, victims and their family members, feel seen, heard, understood and able to participate meaningfully in matters that affect them. It is recognised that victims of sexual and family violence in particular should be treated with respect and sensitivity because of the trauma they have experienced.

Misinformation and explaining the justice system

There is currently a global mistrust of institutions.⁹⁶ The judiciary has not been immune.⁹⁷ For example, in a recent survey in the United States, while over 90 per cent of those responding perceive the rule of law to be essential or important,⁹⁸ trust in judges and magistrates has declined from 69 per cent in 2018 to 56 per cent in 2024.⁹⁹ While confidence that everyone gets a fair trial remains relatively high at 65 per cent, this had declined from 80 per cent in 2013. Equally, confidence that judges would decide cases in an independent manner had fallen from 64 percent in 2017 to 47 per cent in 2024, and only 31 percent thought that courts are not biased towards money or influence.¹⁰⁰

Some of this decline in confidence can be attributed to social media which has meant global connectivity, improved access to information and the ability for everyone with internet access to communicate with each other. It has also brought cyberbullying and fake news. Judges have not been immune. They have been subject to online attacks from disgruntled litigants and from others who have taken exception to particular judgments or are just more generally disaffected. These attacks often impugn the integrity of the judge and are frequently based on misinformation.¹⁰¹

Persistent spreading of misinformation can be particularly pernicious.¹⁰² One way of diminishing (albeit not eliminating) the risk of misinformation is for judges to do their best to ensure that their actions are fully explained in terms those unfamiliar with the law can understand and that all parties feel that they have had a truly fair hearing. Lawyers and legal associations also have a crucial role to play in explaining the law and the courts system and in correcting misinformation.¹⁰³

New communication methods and the internet can assist in extending the reach of information on the courts and the law. The New Zealand judiciary for example produces annual reports which are available online.¹⁰⁴ We are not unique in doing this. Other judiciaries have the similar practices of issuing yearly reports including Canada, the United Kingdom, Australia, Korea, Indonesia and of course Malaysia.¹⁰⁵

I take as an example the United Kingdom and Aotearoa/New Zealand in light of art 15 of the Beijing Statement which recognises that “In some societies” appointment of judges by a Judicial Services Commission has been seen as appropriate.¹⁰⁸

In the United Kingdom, since April 2006, the selection of judges and members of some tribunals¹⁰⁹ are made on the recommendation of an independent Judicial Appointments Commission.¹¹⁰ The Commission has 14 members, of which five must be lay members.¹¹¹ The Chairman of the Commission must also be a layperson. The Constitutional Reform Act 2005 (UK) specifies at s 63 that candidates are selected “solely on merit” and must be persons of good character. One of the motivations for setting up the Commission was to increase diversity of appointments and consequently, s 63(4) (which was inserted by amendment in 2013)¹¹² provides that the word “solely” does not prevent one candidate from being preferred over another on the basis of diversity if the two candidates are of equal merit.¹¹³ Section 64 requires the Commission to “have regard to the need to encourage diversity in the range of persons available” for judicial selections.¹¹⁴

By contrast, in Aotearoa/New Zealand (which of course shares much of its legal heritage with the United Kingdom) judges are selected differently, similar to the old processes in the United Kingdom. In Aotearoa/New Zealand, judges and judicial officers are appointed by the Governor-General, acting on the advice of the Attorney-General.¹¹⁵ The Attorney-General is a member of the Executive but it is a constitutional convention that the Attorney-General acts independently of the Government and is not influenced by politics when recommending appointments.¹¹⁶

The Crown Law Office¹¹⁷ manages the appointment process for senior court judges in accordance with a published protocol. The criteria of suitability for a judicial role include legal ability, qualities of character, personal and technical skills and the need to ensure the judiciary reflects society.¹¹⁸ For appointments to the appellate courts (the Supreme Court and Court of Appeal), in addition to the standard criteria, the Attorney-General will also consider “the overall make-up of the court, including the diversity of the bench and the range of experience and expertise of the current judges”.¹¹⁹

Overall then, the United Kingdom and Aotearoa/New Zealand models of judicial appointment look quite different but have similar goals. In both jurisdictions, the process is designed to ensure apolitical appointments and that suitable persons are chosen which fulfil the criteria of appointment. But ensuring diversity of appointment is also a common theme.¹²⁰

Diversity

As discussed above, one of the aspects of the World Justice Project’s definition of the rule of law is to have judges who “reflect the makeup of the communities they serve”. There is debate among commentators as to how this intersects with requirements like that contained in art 11 of the Beijing Statement, “that judges be chosen on the basis of proven competence”.

There is no doubt that those selected to be judges should be highly qualified and capable.¹²¹ This is because the decisions that judges make have significant consequences for society, not to mention very personal consequences for the parties. Many would argue that merit should be the only touchstone when considering judicial appointments. Those espousing this view say that appointments based on merit may in time lead to diverse judiciaries as meritorious women and minority candidates emerge, but they argue that striving for diversity should not be allowed to diminish the quality of the judiciary.¹²²

On the other hand, those advocating for diversity say that this is too narrow a view. Merit is vital but the judiciary also needs to be representative (and hence diverse) in order to serve the population. They therefore argue that diversity should be seen as an element of merit and effectively engrafted onto the merit requirements for the role of judge. On this view diversity is intrinsic, and not contradictory or secondary, to merit. Having diverse perspectives improves the quality of debate, means that minority views that otherwise may not have been obvious to the majority are considered and plays a role in countering unconscious bias.¹²³

I would go further. Like beauty, merit is in the eye of the beholder. It is not an objective standard. The criteria to assess merit have traditionally been defined by the already predominantly male group. Rather than being a fair and transparent process, a merit-based system can therefore exclude women and other groups on the basis that they lack “merit” but only as this is defined by those currently involved in the selection processes.¹²⁴

These issues are exacerbated by the barriers that women and minority judges face in their career development, including discrimination, bias, stereotyping and structural inequalities in society as a whole, including in the judiciary itself. Unequal responsibilities for family commitments¹²⁵ and a lack of female role models also inhibit progress. Women who are disabled or from minority backgrounds experience intersecting forms of discrimination and barriers when pursuing a judicial career.

A diverse judiciary is vital to ensure the legitimacy of the courts. The public will have greater confidence in a system that is seen to reflect society, rather than just a privileged minority. Having a judiciary that reflects the society it serves shows a commitment to equality.¹²⁶ As Lady Hale, the former President of the UK Supreme Court, said, “our courts, and the lawyers who serve their clients in and out of court, must be as reflective as possible of the society they serve”.¹²⁷ All members of the public need to feel that the justice system is available to them.¹²⁸ Symbolically, as the institution administering justice, the composition of judiciaries should embody equality and fairness.

There are also important access to justice implications. Where people see themselves reflected in decision-makers, they are more likely to trust and seek the assistance of the courts.¹²⁹ Individuals from minority communities may be less willing to turn to the courts if courts are perceived as only representing and reflecting the majority.¹³⁰

In addition, women and minorities, including those with disabilities and from different ethnic and socio-economic groups, bring different life experiences and perspectives to their roles on the bench. By approaching the law with their unique lens, they can contribute to a richer, more informed application and development of the law. Modern judiciaries, however, require diverse thinking from all their members.¹³¹ Here judicial education and interaction with colleagues can play a vital role.

Women judges can also play a crucial role in advocating for and advancing women’s rights, both in the judiciary and beyond. As noted above, in many places around the world, women and men are not equal under the law. Of course, women judges cannot solve all these problems.¹³² But they are an essential part of the wide-reaching, systemic change needed to tackle gender-based inequities. Under the UN Sustainable Development Goal five gender equality is not only a fundamental human right, but a necessary foundation for a peaceful, prosperous and sustainable world. So, the stakes are high.

The importance of women judges to achieving gender equality was recognised internationally by the United Nations when the General Assembly adopted a resolution designating 10 March each year as an official day for recognising, celebrating and progressing the work of women judges around the world.  The resolution received widespread support; it was co-sponsored by 72 states and adopted by consensus.¹³³

This momentous occasion has huge symbolic significance. The resolution represents clear support for female participation in the judiciary. It recognises the unique talents, perspectives and life experiences women bring to their roles on the bench. It unequivocally affirms that “active participation of women, on equal terms with men, at all levels of decision-making is essential to the achievement of equality, sustainable development, peace and democracy”.¹³⁴ Hopefully, this day will act to inspire the next generation of women judges and leaders in the law.¹³⁵

Progress is being made. In Europe and the Americas there is a roughly equal proportion of women judges to men.¹³⁶ In other regions, this proportion is closer to a third.¹³⁷ But, even in regions with greater numbers of women judges, women still “tend to be clustered in social rather than commercial courts and are underrepresented in the higher courts and in management roles”.¹³⁸ As such, there is still some way to go on in terms of diversity on the bench but diversity is an important aspect of judicial independence.

And as a final point, diversity must apply to all levels of the judiciary and also to the rest of the justice system, including lawyers, court staff, police, social workers and all others involved in the administration of justice.¹³⁹

Election

I now turn to the particular mechanisms of judicial appointment and first discuss selection by election, which is rare.  It exists in various forms in some states in the United States of America.¹⁴⁰ Up until recently, however, Bolivia had been the first modern country to elect judges at the national level.¹⁴¹ Reports indicate that the Bolivia judicial elections have had negative consequences for the rule of law and judicial independence.¹⁴² Similar arguments have been made regarding judicial elections in the United States.¹⁴³ Others point out that elections have also served to give opportunities to become judges to those who would not have been selected by an appointment process that has its own biases, for example women from minority ethnic groups.¹⁴⁴

In light of the experience with diminishing judicial independence, major concern has been expressed about Mexico’s recent reforms to introduce judicial elections for all judges, including for the judges of its highest Court.¹⁴⁵ This replaces the status quo under which judges proceeded along a “technical and exam-based … career track”.¹⁴⁶ The track required competitive examinations across the stages of the judicial career for federal judges.¹⁴⁷ There are fears that moving away from this model will forfeit the rigorous standards leading to the selection of high-quality candidates which are one of its chief benefits.¹⁴⁸

It is reported that former President Andrés Manuel López Obrador (who spearheaded the reforms) said that the overhaul “reaffirms that in Mexico there is a true democracy, where the people elect their representatives”.¹⁴⁹ This appears to be a misunderstanding of the value of impartiality. Judicial independence from the political majority protects the rule of law and substantive human rights, and thereby protects democracy.¹⁵⁰

Even though multiple branches will be involved in the selection of candidates for election there is a concern that the President’s ruling MORENA party (through control over both the legislature and the Executive) will exercise a disproportionate influence over the process.¹⁵¹ Potential issues have been raised regarding negative impacts on international trade and investor confidence.¹⁵² There is also a concern that private interests and organised crime will influence the elections.¹⁵³

These measures have been criticised by various international bodies and other states, including the International Association of Judges (IAJ) Presidency Committee, which have all expressed grave fears for judicial independence. The IAJ commented in its statement:¹⁵⁴

Introducing popular vote as [the] final and decisive decision in the process of appointing judges is in contravention of the principle that judges should be appointed on the [basis] of merit and other objective criteria …

The International Bar Association (IBA) has also issued several statements.¹⁵⁵ IBA’s President Almudena Arpón de Mendívil Aldama also made relevant remarks at the IBA’s 2024 Annual Conference in Mexico City. She stated that:¹⁵⁶

Mexico, which has for years been the nation within the [Latin American] Region to look at, is nowadays taking steps such as the Constitutional Reform approved last week, that can risk the independence of the judiciary, the rule of law, democracy and thus, the achievements gained for Mexican citizens in previous years with enormous effort.

She was joined at the conference by a former President of Mexico and Justice Norma Piña, the current Chief Justice of the Supreme Court of Justice of the Nation.¹⁵⁷ The IAWJ has also made a statement, which I discuss further below in connection to tenure.¹⁵⁸  

Professor Margaret Satterthwaite (the UN Special Rapporteur on the Independence of Judges and Lawyers) has commented that “access to an independent and impartial judiciary is a human right essential for protecting rights and checking power abuses”.¹⁵⁹ Further, she commented that “While judicial elections are sometimes presented as enhancing democracy, they risk prioritizing politics over merit.” And she argued that the removal of a great number of judges due to the reforms “could delay justice and undermine the right to a fair trial”. Finally, the American and Canadian Ambassadors have also made statements expressing concern.¹⁶⁰

Appointment and examination

It is important to recognise that issues with judicial independence may arise under other appointment methods besides election if these methods are managed improperly. For example, as part of its broader campaign of judicial “reforms” while it was in power, Poland’s Law and Justice Party (PiS)¹⁶¹ effectively took control of the National Judiciary Council (NJC) (which has the authority to move for the appointment of judges) by terminating existing members and giving the Sejm (lower house) the authority to select its 15 judicial members.¹⁶²

The Israeli Government’s plans for a judicial overhaul also involve increasing Government influence over the Judicial Selection Committee.¹⁶³ Both the President of the IBA and the Board of the European Association of Judges issued statements warning that the reform (which would have increased the power of the non-judicial members in the Committee) would grant the Executive control over judicial appointments.¹⁶⁴

Controversy about alleged political bias in appointment process has also arisen elsewhere. For example, the United States Supreme Court’s decision in Bush v Gore¹⁶⁵ (in the wake of the 2000 Presidential election) led to concerns over judges favouring parties, which they were aligned with, in election disputes.¹⁶⁶

I also note that, more generally, even selection by examination can be biased. As discussed above, “merit” can be a subjective concept, with its criteria traditionally defined by those in power. The questions of what subjects or skills to test in order to determine “merit” may be contested, and particular views of the skills a judge ought to have may be predetermined by bias. As I state above, certain conceptions of merit may ignore the fact that diversity is itself an element of merit. But selection by examination is arguably less intrinsically threatened by political bias in particular, given that it is an apolitical process. This does not mean, however, that human prejudice will never find its way in. Whatever system of judicial appointment a jurisdiction has, vigilance and an active desire to protect judicial independence are vital.

Tenure

I now move onto the importance of judges having security of tenure. As with appointments, the Beijing Statement recognises differences between jurisdictions on this issue, but also identifies necessary bottom lines. First, art 18 provides that “Judges must have security of tenure.” Also relevant is art 21, which provides that a judge’s tenure should not be altered to their disadvantage during their term and art 22 which provides that judges should only be removed for “proved incapacity, conviction of a crime, or conduct that makes [them] unfit to be a judge”. Article 23, however, provides that “by reason of differences in history and culture, the procedures adopted for the removal of judges may differ in different societies”.¹⁶⁷

In this section I begin by discussing recent breaches of the principle of security of tenure. One relatively recent example is the dismissal of judges (and prosecutors) following the coup attempt which occurred in Turkey on 15 July 2016.¹⁶⁸ As summarised by Professor Satterthwaite:

In the aftermath of 15 July 2016 in Türkiye, 4.362 judges and prosecutors were dismissed, including members of the Court of Cassation, the Council of State and the Constitutional Court. Criminal investigations were opened against approximately 4.370 judges and prosecutors, 1.311 of them were taken into custody and 2.431 were arrested for their alleged links with the Hizmet /Gülen Movement …

Professor Satterthwaite specifically commented that Turkey’s anti-terrorism framework undermined the judiciary’s independence, and there was “a great potential for the arbitrary dismissal of judges”. Further, removals and detentions may have led to “a general climate of fear” with judges and prosecutors potentially “practicing self-censorship”.¹⁶⁹

The IAWJ issued a statement on this issue at the time it happened, arguing that the measures violated independence and impartiality (as these are crucial to the rule of law):¹⁷⁰

The wholesale termination of judges, with an apparent lack of individualized due process, is a threat to those principles. We urge the Turkish authorities to conform their actions to the dictates of the national Constitution and laws, consistent with international principles of human rights, the United Nations Basic Principles on the Independence of the Judiciary and the Bangalore Principles of Judicial Conduct.

In Mexico, a large number of judges will have to run for re-election given the timing of the elections brought on by the recent reforms.¹⁷¹ This is a breach of their security of tenure. Even if these judges will run for (and in some cases win) re-election, to make their continued holding of office contingent on a popular vote is still a breach of this principle. Further, some positions have also been altogether abolished: the number of Judges on the Supreme Court of the Nation has been decreased from 11 to nine. The term of the Supreme Court judges has been reduced, down to 12 years from the current 15.

The IAWJ issued a statement on these reforms in the following terms:¹⁷²

Judicial officers should only be removed for just cause, as previously established by law, with sufficient procedural protections, including the right to appeal and judicial review. Any attempt to remove incumbent judges before the completion of their terms constitutes a significant threat to judicial independence.

Although the reforms in Mexico have been put forward, among other justifications, to address corruption,¹⁷³ many argue that these reforms will make the issue worse rather than better.¹⁷⁴ Further, according to one expert, there have been no major corruption cases at the federal level, with corruption more of a problem at the local level.¹⁷⁵ Other commentators point out that, while there are difficulties in Mexico with bringing cases to court this is more to do with prosecutors and the police than it is with judges.¹⁷⁶

I acknowledge that respecting security of tenure will make wholesale, drastic reforms of the judiciary difficult — but arguably this is a price which must be paid for judicial independence. Further, in a system of appointment which in Mexico has, until this year, operated under a career- and examination-based model, such drastic reforms are bound to cause disruption to the workings of the court system.

Reforms do not need to be drastic to affect judicial independence. For example, in Poland, PiS attempted to lower the judicial retirement age of sitting Supreme Court judges from 70 to 65.¹⁷⁷ The legislation originally provided that women judges would have the option of retiring at 60, earlier than the retirement age for male judges.¹⁷⁸ As well as broad measures (like reducing terms or retirement ages) disciplinary processes may also be used to threaten judicial independence. To give another example from Poland, what was termed the “muzzle law” judges to be dismissed or have their salaries cut if they questioned the validity of PiS’ judicial reforms.¹⁷⁹ Judges were also required to “disclose their memberships in associations, including associations of judges”.¹⁸⁰

To end this section, I want to it clear that I am not suggesting that individual judges should be immune from all accountability. It is just that any accountability mechanisms and processes must be consistent with judicial independence. Returning to the theme discussed above, judiciaries must also be prepared to change to meet the needs of modern societies and to respond to criticisms about their workings.¹⁸¹

⁴⁰   United Nations Sustainable Development Group “2030 Agenda and the Sustainable Development Goals – Universal Values” <unsdg.un.org>.

⁴¹   United Nations Department of Economic and Social Affairs “Goal 16” <sdgs.un.org>.

⁴²   “WJP Rule of Law Index | Insights” World Justice Project <https://worldjusticeproject.org/>.

⁴³   World Justice Project Rule of Law Index 2023 Insights, above n 3, at 37.

⁴⁴   At 33

⁴⁵ Further, in New Zealand only a tiny proportion of civil justice issues ever reach a court or tribunal: Neil Sands “Few potential litigants find their way to court, MOJ survey reveals” Law | News (New Zealand, 30 October 2024).

⁴⁶ Justice for All: The Task Force on Justice (Center on International Cooperation, 2019) at 18. See also World Justice Project Measuring the Justice Gap: A People-Centered Assessment of Unmet Justice Needs Around the World (2019).

⁴⁷ Justice for All: The Task Force on Justice, above n 46, at 18. Those living in “extreme conditions of injustice” are those who live in jurisdictions where the justice system is either “incapable” of protecting their rights or where they are “actively denied justice”: at 32. An example of this is those living in modern slavery. The category of people with “justice problems they cannot resolve” includes “victims of unreported violence or crime” or those with an unreported civil or administrative justice need, like a dispute over land: at 18. The category of people “excluded from the opportunities the law provides” covers people who lack legal identity, proof of housing or land tenure or who are employed in the informal economy: at 38.

⁴⁸ World Justice Project A People-Centered Assessment of Unmet Justice Needs Around the World, above n 46, at 15–21. 

⁴⁹   See Helen Winkelmann, Chief Justice of New Zealand “Address to Aotearoa Disability Law AGM” (Mangere Community Law Centre, 18 November 2024).

⁵⁰   At 21.

⁵¹   At 18.

⁵²   At 20.

⁵³   “Refugee Data Finder” (13 June 2024) United Nations High Commissioner for Refugees <www.unhcr.org>.

⁵⁴  See Susan Glazebrook “Climate change is not gender neutral” (speech presented to virtually to the Annual Meeting of Asociación de Mujeres Jueces de Argentina/Association of Women Judges of Argentina, La Plata, 18 August 2022).

⁵⁵ Measuring the Justice Gap, above n 46, at 22.

⁵⁶   Discriminatory Laws Undermining Women’s Rights (European Parliament, PE 603.489, May 2020) at 20.

⁵⁷   At 21.

⁵⁸   At 22.

⁵⁹   At 22.

⁶⁰   At 15.

⁶¹   World Bank Group Women, Business and the Law 2024 (2024) at xvii.

⁶²   At xiii.

⁶³   At 19.

⁶⁴ For examples of two different standards for measuring judicial independence see Jessica Kerr “Judicial Independence in Australia” (paper prepared for the Australian Judicial Officers Association, August 2024); and European Law Institute ELI-Mount Scopus European Standards of Judicial Independence (Vienna, 2024).

⁶⁵ See arts 3–9.

⁶⁶ See arts 11–17.

⁶⁷ See arts 18–30.

⁶⁸ See arts 31–32 and 35–37. On 4 March 2025, the United Nations declared 25 July as the International Day for Judicial Wellbeing.  25 July was chosen in recognition of the Nauru Declaration on Judicial Wellbeing, which was launched on 25 July 2024, and draws attention to the link between judicial wellbeing and integrity. See Monidipa Fouzder “UN declares 25 July ‘day for judicial  wellbeing’” (5 March 2025) The Law Society Gazette <https://www.lawgazette.co.uk/>.

⁶⁹  See arts 33–34.

⁷⁰  See arts 35–37. The International Institute for Justice Excellence [IIJE] provides support for court systems to deliver administrative best practices, see: IIJE <https://iije.org/>.

⁷¹ See arts 38–40. The relevant section of the Beijing Statement is “RELATIONSHIP WITH THE EXECUTIVE”, but I also include the legislature here. On the role of the legislature in upholding the rule of law, see Richard Hermer, Attorney-General of the United Kingdom “The Rule of Law in an Age of Populism” (Bingham Lecture 2024, The Honourable Society of Gray’s Inn, London, 14 October 2024).

⁷² Oaths and Declarations Act 1957, s 18.

⁷³ This paragraph is taken from Susan Glazebrook “Beneath the blindfold: responsive to society or caving to pressure” (speech given at the Constitutional Law Forum at the 65th annual conference of the International Association of Judges, Taipei, 18 September 2023) at 6–7. 

⁷⁴ This remark was made by Lord Kilmuir of the United Kingdom in 1955 and became known as the “Kilmuir Rules”. These “unofficial” rules were officially abandoned in the United Kingdom in 1987, although it is generally agreed that the Kilmuir Rules merely recommended restraint and that public discourse to some extent continued. See Katherine Sanders “Away from the Familiar – Judges in Public Debate and as Commissioners” in John Burrows and Jeremy Finn (eds) Challenge and Change: Judging in Aotearoa New Zealand (LexisNexis, Wellington, 2022) at 226–228.

⁷⁵ A Canadian author, Wes Pue, observed that the legal profession’s culture was formed in “bars and cafes, gentlemen’s clubs … golf games and railway cars”: W Pue Lawyers’ Empire: Legal Professions and Cultural Authority, 1780–1950 (University of British Columbia Press, Vancouver, 2016) as cited in Hilary Sommerlad “Judicial diversity: Complexity, continuity and change” in Graham Gee and Erika Rackley (eds) Debating Judicial Appointments in an Age of Diversity (Routledge, Abingdon, 2018) at 216. Sommerlad explains that “these sites and practices privilege specific formations of cultural and social capital and tend to exclude women and minorities”: at 216–217.

⁷⁶ In Aotearoa/New Zealand, see Elisabeth McDonald and others (eds) Feminist Judgments of Aotearoa Te Rino: A Two-Stranded Rope (Hart Publishing, Portland, 2017). For other jurisdictions see: Diana Majury “Introducing the Women’s Court of Canada” (2006) 18 CJWL; Rosemary Hunter, Clare McGlynn, and Erika Rackley (eds) Feminist Judgments From Theory to Practice (Hart Publishing, Portland, 2010); Heather Douglas and others (eds) Australian Feminist Judgments: Righting and Rewriting Law (Hart Publishing, Portland, 2014); Kathryn M Stanchi, Linda L Berger and Bridget J Crawford (eds) Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press, Cambridge, 2016) and Máiréad Enright, Julie McCandless and Aoife O’Donoghue (eds) Northern/Irish Feminist Judgments Judges’ Troubles and the Gendered Politics of Identity (Hart Publishing, Oxford, 2017). The Aotearoa/New Zealand project is unique in its inclusion of perspectives with a te ao Māori (Māori world)/wāhine (woman) worldview: Rosemary Hunter and others “Introducing the Feminist and Mana Wahine Judgments” in Elisabeth McDonald and others (eds) Feminist Judgments of Aotearoa Te Rino: A Two-Stranded Rope (Hart Publishing, Portland, 2017) 25 at 41–44.

⁷⁷ Elisabeth McDonald and others, above n 76, at 25.

⁷⁸ Plessy v Ferguson 163 US 537 (1896). Some of the discussion in the following paragraphs is taken from Glazebrook “The Rule of Law: Guiding Principle or Catchphrase?”, above n 4, at 4–5. 

⁷⁹ Regarding his reversal from his earlier position on slavery, Justice John Marshall Harlan famously said, “Let it be said that I am right rather than consistent.” He would go on to become the single most consistent champion of black civil rights on the United States Supreme Court of his day: see generally Alan F Westin “Mr Justice Harlan” in Allison Dunham and Phillip B Kurland (eds) Mr Justice: Biographical Studies of Twelve Supreme Court Justices (2nd ed, University of Chicago Press, Chicago, 1964) 93. I do note, however, that Justice Harlan harboured a seeming animosity towards Chinese litigants: see generally Gabriel J Chin “The Plessy Myth: Justice Harlan and the Chinese Cases” 82 Iowa L Rev 151.

⁸⁰ Plessy v Ferguson, above n 78, at 559 and 562.

⁸¹  This line is taken from Susan Glazebrook “ Do they say what they mean and mean what they say?”, above n 7, at 88, where I discuss similar issues.

⁸²  [1914] 1 Ch 286 (CA).

⁸³   At 297

⁸⁴   Hall v Society of Law Agents (1901) 38 SLR 776; and Incorporated Law Society v Wookey [1912] AD 623. 

⁸⁵ Tanira Kingi “Ahuwhenua – Māori land and agriculture - Land ownership and Māori agriculture” (24 November 2008) Te Ara – The Encyclopedia of New Zealand <https://teara.govt.nz/>. See also Susan Glazebrook “Women Delivering Justice: A Call for Diverse Thinking – Address at the 65th Session of the Commission on the Status of Women” [2021] NZWLJ 114 at 115 and 117. I also comment that land deprivation has led to Māori suffering lasting deprivation in other areas, like health: see Glazebrook “Women Delivering Justice: A Call for Diverse Thinking” at 115–116.

⁸⁶ Jeffrey J Rachlinski and others “Does Unconscious Racial Bias Affect Trial Judges?” (2009) 84 Notre Dame L Rev 1195.

⁸⁷ Justice Sector Long-Term Insights Briefing: Long-Term Insights on Imprisonment, 1960 to 2050 (December 2022) at 53.

⁸⁸ Māori with no prior justice system contact are more likely to be charged by Police than Europeans: JustSpeak A Justice System for Everyone (2020) available at <www.justspeak.org.nz>; and Meriana Johnsen “ Justice system called 'fundamentally racist' - new study shows Māori more likely to go to court” (27 February 2020) Radio New Zealand <www.rnz.co.nz>.

⁸⁹ Jeffrey Rachlinski, Andrew J Wistrich and Bernice B Donald “Getting Explicit About Implicit Bias” (2020–2021) 104(3) Judicature 75 at 79–80; and Gibbs Salika, Chief Justice of Papua New Guinea “Ethics - The Construct of Impartiality and Unconscious Bias” (keynote address at the Pacific Judicial Integrity Program Judicial Fraud and Anti-Corruption Workshop Hilton Hotel, Port Moresby, 28 November, 2022) at 7–11 available at <www.fedcourt.gov.au>.

⁹⁰ While there may have been a traditional suspicion of judicial education in common law countries, it has long been the case in many civil law countries that judges have had to take dedicated courses and qualify by examination. In both common law and civil law countries, judicial education is now recognised as essential to maintaining judicial independence. For more on judicial education see: Susan Glazebrook “Judicial Education in New Zealand: a Work in Progress” (adapted version of paper presented at the (Australian) Supreme and Federal Court Judges Conference, Wellington, January 2011) available at <www.courtsofnz.govt.nz>.

⁹¹ World Justice Project Measuring the Justice Gap, above n 46. 

⁹² Elizabeth Andersen, Executive Director of the World Justice Project “What is People Centered Justice” (remarks given at the American Bar Association’s “Putting People first: People-Centered Justice at Home and Abroad” Washington DC, 16 May 2023) available  at  <https://worldjusticeproject.org/>.

⁹³ For the full report Andersen refers to see: World Justice Project Global Insights on Access to Justice: Findings from the World Justice Project General Population Poll in 101 Countries (2019).

⁹⁴ The comments on Te Ao Mārama project are taken from remarks in the “Sustaining Judicial Confidence” Webinar. For key initiatives which form part of Te Ao Mārama see: New Zealand Ministry of Justice Te Ao Mārama — Enhancing Justice for All <www.justice.govt.nz>.  

⁹⁵ Judicial officers and court staff are encouraged to make eye contact and use other non-verbal active listening cues, where they would be well received. To make it easier to engage with participants, alternative courtroom layouts can be used, like round tables, horseshoe formations, where it is safe to do so, along with toned-down formalities.

⁹⁶ See for example Edelman Trust Institute 2024 Edelman Trust Barometer: Global Report (2024).

⁹⁷      The National Center for State Courts has developed guidelines for courts dealing with disinformation threats: National Center for State Courts “Disinformation and the courts” <https://www.ncsc.org/>.

⁹⁸  World Justice Project U.S. Rule of Law Trends & The 2024 Election (2024) at 9. 13 per cent, however, said that it is not necessary to obey the laws of a government you did not vote for: at 10. Further, 46 per cent of Republicans and 27 per cent of Democrats said they would not accept the 2024 Presidential election results as legitimate if the other party’s candidate won: at 20. Further, worryingly, 14 per cent of Republicans and almost 11 per cent of Democrats said they would take action to overturn such an election.

⁹⁹ At 14. 

¹⁰⁰ At 16.

¹⁰¹ For more information see: Glazebrook “Beneath the blindfold”, above n 73, at 2–5.

¹⁰² The dangers of misinformation and its threat to democracy are all too real: European Commission “Disinformation: A threat to democracy – Brochure” (9 April 2021) <digital-strategy.ec.europa.eu>.

¹⁰³ Unfortunately, however, correcting misinformation does not necessarily solve all the problems as misinformation can still persist even in the face of evidence to the contrary: see Ullrich K H Ecker and others “The psychological drivers of misinformation belief and its resistance to correction” (2022) Nature Reviews Psychology 13. See Council of Bars and Law Societies of Europe “CCBE response to the report of the UN Special Rapporteur on the independence of judges and lawyers on ‘Safeguarding the independence of judicial systems in the face of contemporary challenges to democracy’” (press release, 5 November 2024) for further discussion on the role of the legal profession in safeguarding the rule of law.

¹⁰⁴ See: Ngā Kōti o Aotearoa | Courts of New Zealand “Reports” <www.courtsofnz.govt.nz>.

¹⁰⁵  See: Canada: Supreme Court of Canada Year in Review <scc-csc.ca>; United Kingdom: The Supreme Court UK Supreme Court's 2022-23 Annual Report and Accounts Published <www.supremecourt.uk>;  Korea:  Constitutional  Court  of  Korea  Introduction  Materials <ccourt.go.kr>; Indonesia: Mahkamah Agung Republik Indonesia [translation: Supreme Court of the Republic of Indonesia] The Annual Reports of The Supreme Court of the Republic of Indonesia <www.mahkamahagung.go.id> and Malaysia: Office of the Chief Registrar Federal Court of Malaysia Annual Report of Judiciary <kehakiman.gov.my>.

¹⁰⁶ See Federal Justice Center “Judicial Selection” Judiciaries Worldwide <https://judiciariesworldwide.fjc.gov/>.

¹⁰⁷  See for example the description of the structures and processes for judicial appointment in Australia in Stephen Gageler “The State of the Australian Judicature in 2024” (2024) 98 ALJ 885 at 889–890.

¹⁰⁸ Emphasis added.

¹⁰⁹ The selection process of the members of the United Kingdom Supreme Court is overseen by an independent selection commission under ss 26–27B of the Constitutional Reform Act 2005 (UK) and the Supreme Court (Judicial Appointments) Regulations 2013 (UK).

¹¹⁰ Constitutional Reform Act 2005 (UK), s 61 and sch 12; and “About us” Judicial Appointments Commission <https://judicialappointments.gov.uk/>.

¹¹¹ “The Board of Commissioners” Judicial Appointments Commission<https://judicialappointments.gov.uk/>; and The Judicial Appointments Commission Regulations 2013 (UK) reg 14(4).

¹¹² Crime and Courts Act 2013 (UK), sch 10(3), para 10(3).

¹¹³ For more on this see “Equal merit” Judicial Appointments Commission <https://judicialappointments.gov.uk/>.

¹¹⁴ For more on judicial diversity in the United Kingdom see: “Diversity of the judiciary: Legal professions, new appointments and current post-holders – 2024 Statistics” GOV.UK <www.gov.uk>. For a summary of the current problems facing United Kingdom efforts to achieve judicial diversity see: Jennifer Barton-Crosby and others Judicial Diversity: Barriers and initiatives (National Centre for Social Research, February 2023). For measures taken to increase judicial diversity in appointments, see: Judicial Appointments Commission “JAC Strategy 2024 to 2027” <judicialappointments.gov.uk> at 11–13.

 ¹¹⁵ “How is a judge appointed?” Ngā Kōti o Aotearoa|Courts of New Zealand <www.courtsofnz.govt.nz>. The Chief Justice is, however, appointed on the recommendation of the Prime Minister: see Senior Courts Act 2016, s 100(2). The then Prime Minister put in place a process to govern the appointment of the current Chief Justice: New Zealand Government “Process underway to appoint next Chief Justice of New Zealand” (press release, 6 November 2018). This included the Solicitor-General considering candidates according to agreed criteria, and then providing a shortlist to the Prime Minister. This process was apolitical and involved consultation with a range of stakeholders.