I am pleased that, with limited exceptions, the practice of court‑initiated karakia appears to have been discontinued. I previously raised this issue in correspondence with the Chief Justice Dame Helen Winkelmann, describing the proposal as a serious departure from judicial neutrality, inconsistent with the New Zealand Bill of Rights Act and the rule of law.
In her reply of 16 May 2025, the Chief Justice observed that guidance in the District Court and Senior Courts Bench Books permits karakia where initiated by the parties, subject to judicial discretion, and does not contemplate court‑initiated karakia. The Senior Courts Bench Book further requires that the views of counsel be sought before allowing such a request, and corresponding amendments were to be recommended for the District Court Bench Book. In specialist courts, such as Rangatahi Courts, karakia are more commonly used, but judges are directed to ensure that participation is not compelled.
While this guidance goes some way toward recognising the importance of judicial neutrality—particularly in rejecting court‑initiated karakia—I have questioned whether it goes far enough.
Prompted by recent events, including the Judicial Conduct Commission’s examination of allegations relating to an incident at the Northern Club involving Judge Ema Aitken, I now examine the issue more closely.
‘Unacceptable pressure’
In my view, all forms of actual or apparent partiality must be eliminated. True neutrality requires that neither judges nor court officials participate in karakia. Consent by counsel does not cure institutional partiality. Any participation by the judicial branch creates the appearance of a non‑neutral institution and places counsel in a difficult position, where refusal may be perceived as risking adverse consequences for their clients. That is an unacceptable pressure.
Although the karakia issue concerns in‑court conduct and the Northern Club incident arose outside court, both raise questions about the appearance of partiality in matters of belief, conscience, or opinion. While judges, as private individuals, enjoy freedom of expression, the judiciary as an institution must remain impartial. Institutional neutrality is not optional.
These issues should be addressed on principled grounds. The relevant principles are readily found in the judicial oath, now set out in s 18 of the Oaths and Declarations Act 1957. The oath requires a judge to serve “according to law” and to do right to all manner of people “without fear or favour, affection or ill will.” Its lineage can be traced back to the appointment of New Zealand’s first Chief Justice in 1841, and its substance has remained materially unchanged.
Judicial oath
Several principles emerge clearly.
First, the oath anchors judicial duty in law, not belief. Judicial authority derives exclusively from fidelity to law. Any practice that appears to introduce cultural, spiritual, or ideological commitments into the exercise of judicial power risks undermining that foundation.
Secondly, impartiality is absolute. The oath does not recognise acceptable forms of partiality; it rejects all of them. Good intentions, widespread support, or contextual justifications cannot dilute this standard.
Thirdly, neutrality is institutional rather than personal. The oath speaks to conduct in office, not private belief. Institutional neutrality cannot be waived by agreement of counsel or parties. The appearance of neutrality is as important as its reality.
Fourthly, the obligation to do justice to “all manner of people” requires vigilance against structural coercion. Practices that implicitly pressure participation or discourage dissent are inconsistent with that obligation, even where formal consent is obtained.
Although the oath includes an appeal to God, the 1957 Act expressly accommodates pluralism by permitting affirmations or alternative forms of oath. Importantly, the law does so by limiting religious expression to the individual judge when assuming office, not by incorporating belief into institutional practice. Pluralism is respected through the withdrawal of compulsion, not through the endorsement of belief.
Recent developments in therapeutic or values‑based approaches to justice may be well‑intentioned, but they raise a fundamental question: are such practices compatible with the judicial function? If they require judges to assume roles inconsistent with the office of judge, safeguards must exist to preserve the neutrality of that office.
Applying these principles, karakia and similar practices have no place in the judicial process. As for public commentary on political issues, such as that allegedly arising from the Northern Club incident, their compatibility with judicial office is a matter for the Judicial Conduct Panel. The principles outlined above will inevitably inform that assessment.
Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.
While this guidance goes some way toward recognising the importance of judicial neutrality—particularly in rejecting court‑initiated karakia—I have questioned whether it goes far enough.
Prompted by recent events, including the Judicial Conduct Commission’s examination of allegations relating to an incident at the Northern Club involving Judge Ema Aitken, I now examine the issue more closely.
‘Unacceptable pressure’
In my view, all forms of actual or apparent partiality must be eliminated. True neutrality requires that neither judges nor court officials participate in karakia. Consent by counsel does not cure institutional partiality. Any participation by the judicial branch creates the appearance of a non‑neutral institution and places counsel in a difficult position, where refusal may be perceived as risking adverse consequences for their clients. That is an unacceptable pressure.
Although the karakia issue concerns in‑court conduct and the Northern Club incident arose outside court, both raise questions about the appearance of partiality in matters of belief, conscience, or opinion. While judges, as private individuals, enjoy freedom of expression, the judiciary as an institution must remain impartial. Institutional neutrality is not optional.
These issues should be addressed on principled grounds. The relevant principles are readily found in the judicial oath, now set out in s 18 of the Oaths and Declarations Act 1957. The oath requires a judge to serve “according to law” and to do right to all manner of people “without fear or favour, affection or ill will.” Its lineage can be traced back to the appointment of New Zealand’s first Chief Justice in 1841, and its substance has remained materially unchanged.
Judicial oath
Several principles emerge clearly.
First, the oath anchors judicial duty in law, not belief. Judicial authority derives exclusively from fidelity to law. Any practice that appears to introduce cultural, spiritual, or ideological commitments into the exercise of judicial power risks undermining that foundation.
Secondly, impartiality is absolute. The oath does not recognise acceptable forms of partiality; it rejects all of them. Good intentions, widespread support, or contextual justifications cannot dilute this standard.
Thirdly, neutrality is institutional rather than personal. The oath speaks to conduct in office, not private belief. Institutional neutrality cannot be waived by agreement of counsel or parties. The appearance of neutrality is as important as its reality.
Fourthly, the obligation to do justice to “all manner of people” requires vigilance against structural coercion. Practices that implicitly pressure participation or discourage dissent are inconsistent with that obligation, even where formal consent is obtained.
Although the oath includes an appeal to God, the 1957 Act expressly accommodates pluralism by permitting affirmations or alternative forms of oath. Importantly, the law does so by limiting religious expression to the individual judge when assuming office, not by incorporating belief into institutional practice. Pluralism is respected through the withdrawal of compulsion, not through the endorsement of belief.
Recent developments in therapeutic or values‑based approaches to justice may be well‑intentioned, but they raise a fundamental question: are such practices compatible with the judicial function? If they require judges to assume roles inconsistent with the office of judge, safeguards must exist to preserve the neutrality of that office.
Applying these principles, karakia and similar practices have no place in the judicial process. As for public commentary on political issues, such as that allegedly arising from the Northern Club incident, their compatibility with judicial office is a matter for the Judicial Conduct Panel. The principles outlined above will inevitably inform that assessment.
Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.
No comments:
Post a Comment
Thank you for joining the discussion. Breaking Views welcomes respectful contributions that enrich the debate. Please ensure your comments are not defamatory, derogatory or disruptive. We appreciate your cooperation.