One of my readers sent me an E-mail asking if I thought the judiciary should be elected. I thought that rather than reply by E-mail that I would post a blog entry about it. So, here are my thoughts on the judiciary and whether they should be elected or not.
There is an argument that the judiciary should be elected so as to make them accountable to the public. The nature of the judiciary’s job is that they interpret legislation and carry considerable law making powers through their constitutional role. As our politicians, who also make the law, are elected and thus accountable to the public some believe that the judiciary should also be elected. This idea of accountability appears to be the foremost argument in favour of having an elected judiciary.
I am not a proponent of an elected judiciary. In my opinion, electing judges creates a large number of problems that will ultimately be bad for justice and will undermine, rather than strengthen the legal system. My main reasons for opposing such a move are as follows:
Firstly, it is quite clear from looking at politicians what happens when elections are part of the process. It becomes about popularity as opposed to the level of skill and knowledge that one has. I’d much rather that candidates for judicial office are assessed based on their knowledge of the Law rather than on how well the candidate can come across on a TV chat show or popular they are. The very nature of the role means that a person is going to be unpopular – sending someone to prison will always make you unpopular with at least one side of the court room and if a judge’s job security ultimately comes down to how popular they are this could have an impact upon how they function in the role – they may be more lenient in some cases than they ought to be and equally they could come down harsher on an individual than they ought to simply because of public opinion.
Secondly, if a judge is elected and the reason for that election is accountability then each judge will have to serve a set term and then stand for re-election otherwise your idea of having elected judges for reasons of public accountability is fundamentally flawed. This could lead to the law being held back or moving in undesirable ways as there may be no (or at least a lack of) continuity.
I really don’t want the person having responsibility for my sentence, the outcome of my appeal (or in the lower courts the verdict as well as sentence) trying to appease the writers and readers of the Daily Mail – that would be a very bad situation indeed. It wouldn’t strengthen the legal system or judiciary, in fact it would do the opposite and weaken its very foundations.
prout de jure 