Introduction
Greek tragedy, at its most essential, is not simply a story of suffering. It is a story of a particular kind of suffering — one that arises from the collision between a person of considerable stature and a fatal internal flaw that they either cannot see or cannot resist.
The great Aristotelian conception of tragedy requires a protagonist of high social standing, an hamartia or fatal error, the arousal of hubris — that peculiar Greek sin of overweening pride and presumption — and ultimately a nemesis or divine retribution that brings the figure low, often in proportion to the heights from which they fell.
What is remarkable about the case of District Court Judge Ema Aitken, currently before New Zealand’s first-ever Judicial Conduct Panel substantive hearing, is how closely and uncomfortably it conforms to this ancient template.
This is not merely a case about whether a judge yelled at a politician at a private club function. It is a story about identity, status, pride, the abuse of professional standing, and the peculiar vulnerability of those who occupy positions of institutional authority when they forget — even briefly — the obligations that come with that authority.
It is, in almost every structural and psychological sense, a Greek tragedy unfolding in real time.
The Protagonist: Status and the Judicial Identity
No Greek tragedy can begin without establishing the stature of the protagonist. In Sophocles’ Oedipus Rex, Oedipus is king. In Aeschylus’ Agamemnon, the protagonist commands armies. The tragedy derives its power precisely because someone important falls. Judge Ema Aitken, by any measure, is such a person.
By the time of the Northern Club incident on 22 November 2024, Judge Aitken had accumulated approximately two decades of distinguished public service. Her colleague Judge David McNaughton gave evidence before the Judicial Conduct Panel that she was “one of the best judges on our bench,” that her judgments were “sound” and “well-reasoned,” and that she would have made “an excellent High Court judge” — indeed, he ventured, she had perhaps been “too good” for the District Court.
She had played a pivotal role in establishing New Zealand’s Alcohol and Other Drug Treatment Court, a genuinely innovative therapeutic justice initiative. She and her husband, intensive care specialist Dr David Galler, had undertaken humanitarian work in Samoa. She was, in short, not merely a judge but an institution — admired, mentored colleagues, and occupied a position of considerable moral and professional authority within the legal community.
In the Greek tragic tradition, this is the necessary condition for the drama that follows. A person of no consequence cannot be the subject of tragedy. The fall must be from height. Judge Aitken’s height was considerable.
The Fatal Evening: Hamartia at the Northern Club
On the evening of 22 November 2024, two separate functions were being held at Auckland’s Northern Club. One was a farewell dinner for District Court judges, at which Judge Aitken was herself a guest of honour - the occasion marking the resignation of her own full-time judicial warrant. The other was a New Zealand First fundraising event, at which Deputy Prime Minister Winston Peters was speaking.
What occurred in the stairwell connecting these two worlds and the facts found by the Panel is the peripeteia — the sudden reversal — that sits at the heart of this tragedy.
According to NZ First witnesses, including party secretary Holly Howard, board member Dorothy Jones, and Customs Minister Casey Costello, Judge Aitken descended a staircase, heard Mr Peters speaking about tikanga Māori being taught in law schools.
The Judicial Conduct Panel found she said audibly “He’s lying!” or “That’s a lie” before attempting to enter the private function and turning to Costello with the rhetorical challenge: “How can he say that?” Howard described having to physically block Aitken with outstretched arms.
Judge Aitken’s own account was markedly different. She says she “mouthed” a comment inaudibly, that she did not recognise Peters’ voice, did not know it was a political event, and that the entire episode was a momentary, reflexive reaction to what she believed was a factually incorrect claim about the law.
In her evidence before the panel, she acknowledged the conduct was “reactionary and rude,” not consistent with her usual character or reputation, and attributed it partly to tiredness after a difficult day in court.
The factual dispute was profound and was addressed by the Panel although it seemed clear that at the time she made the remarks the Judge was unaware that the speaker was Mr. Peters. But for the purposes of a tragic analysis, it matters less exactly what she said and more what the moment reveals about the underlying dynamics at work.
Even in her own account, something significant is disclosed: a judge, on the occasion of her own judicial celebration, descending a staircase and being unable to stop herself from commenting — however quietly — on another person’s speech on a matter of law.
The impulse to correct, to assert, to intervene, even in the wrong context and at the wrong moment, is itself revealing. It is the impulse of someone who has been an authority for so long that the habit of correction has become instinctive, the internal governor that might restrain a private citizen failing to operate when it was most needed.
This is the hamartia - not wickedness, not malice, but a failure of self-governance at precisely the moment when self-governance was most constitutionally required.
But the damage from her behaviour extends not only to herself but to the establishment where it took place – the oikos, which in the Greek setting covers not only the “house” but also the broader relationships and social circle surrounding that establishment.
The publicity that the matter has attracted has brought the Northern Club into the picture and as is so often the case, the media takes a delight akin to schadenfreude in using derogatory adjectives like “swanky” or “posh” to draw the establishment – the oikos – into the frame.
Hubris: The Most Greek of Sins
Hubris — hybris in the original — is frequently misunderstood in popular usage as simple arrogance. In the Greek conception it is something more specific and more transgressive: it is the act of placing oneself above the proper order of things, of violating boundaries that exist for good reason, of treating as irrelevant the limitations and obligations that apply to everyone, including oneself.
Crucially, hubris in Greek tragedy is often not a sudden aberration but a long-cultivated habit of mind that has simply, in a given moment, expressed itself in a context where its consequences are catastrophic.
The case of Judge Aitken is shot through with hubris in this precise sense, and it is visible not merely in the Northern Club incident but in her conduct in the months that followed.
Consider, first, the night itself. By her own concession, even in her most favourable account, Judge Aitken heard a voice making what she considered an incorrect legal claim and responded to it. Whatever the volume of her response, the impulse was the same: a judge, at a private social function, believed that her view of the law entitled her to intervene in a speech being given to a private audience in an adjoining room.
There is something constitutionally remarkable about this. The independence of the judiciary — the very protection that Judge Aitken has throughout these proceedings sought to invoke in her defence — exists precisely so that judges can make decisions without fear or favour from politicians.
The corollary of that independence is that judges must maintain equal distance from all political actors and all political questions. To interject into a politician’s speech, even about a legal matter, even quietly, is to violate that distance. Constitutional convention does not require judges to have no views on the law; it requires them not to express those views in ways that compromise their impartiality or the appearance of impartiality.
When Judge Aitken heard that voice and felt compelled to respond, she was, whatever her intentions, asserting the primacy of her legal authority over the norms of judicial restraint that make that authority legitimate.
Second, consider her conduct in the immediate aftermath. Rather than retreating to quiet contrition, the judge became the subject of competing public statements and then launched judicial review proceedings to prevent the Judicial Conduct Commissioner’s recommendation from taking effect.
The High Court initially granted interim orders on the basis that convening a Panel was a serious step that could increase public pressure on the judge and potentially compromise her independence — a somewhat circular observation, given that it was her own conduct that had created the situation.
The judicial review itself, which ultimately failed entirely, had the effect of delaying proceedings by months and generating considerable additional public attention. One might view this as an entirely legitimate exercise of legal rights.
But viewed through the lens of Greek tragedy, it reads differently: it is the protagonist, having committed the hamartia, refusing to accept the consequences, marshalling every available resource to avoid accountability, and thereby compounding the original act with a further assertion of special status.
Third — and here the hubris becomes most explicit — there is the remarkable matter of the Panel hearing itself.
Judge Aitken, or those acting on her behalf, sought to accompany the Panel on its visit to the Northern Club to examine the layout of the premises. ‘
When the panel chair, retired Court of Appeal Judge Brendan Brown KC, declined this request on the grounds that it would not be appropriate for the subject of the inquiry to accompany them, he was met with her counsel’s observation that she had only attended “a handful of times” over the years — as if frequency of attendance were somehow relevant to the appropriateness of the request.
This is a small moment, but symbolically it speaks volumes. The instinct to be present, to be included, to retain control even of the process directed against her, is the instinct of someone accustomed to commanding every room they enter.
There is also the matter of her evidence itself. While giving testimony, Judge Aitken offered a lengthy and nuanced explanation of her constitutional philosophy — describing how she always glances at the New Zealand coat of arms when entering a courtroom to remind herself to “judge without fear or favour, affection or ill will.” This is a beautifully articulated sentiment. But its delivery in the context of proceedings examining whether she behaved with inappropriate political partisanship carries a faint quality of the Sophoclean dramatic irony in which the character’s words reveal the very opposite of what they intend.
The judge who prides herself publicly on her constitutional commitment to impartiality is the same judge who found herself unable to stay silent when a politician said something she believed was legally wrong.
The Chorus: Colleagues, the Bench, and the Wider Judiciary
In Greek tragedy, the chorus exists to articulate the social consequences of the protagonist’s fall — to voice what the community feels, to contextualise the personal drama within the larger world. In this case, the chorus is the New Zealand judiciary itself.
The implications of Judge Aitken’s conduct for her judicial relationships have been both immediate and profound. The most direct evidence of relational damage came in the form of witnesses before the Panel: fellow District Court judges who had been at the same dinner table on the night in question were summoned to give evidence — not by Aitken herself (she said she had deliberately chosen not to ask colleagues to appear, not wishing to put them in a difficult position) but by the Special Counsel for the inquiry.
This is itself a form of Greek dramatic irony. The judge’s consideration for her colleagues, expressed as an unwillingness to make demands of them, was superseded by the process itself. Colleagues were required to speak publicly about a fellow judge’s conduct whether they wished to or not.
Judge Sinclair, for example, found herself in the uncomfortable position of being cross-examined about what she had or had not heard, what she could or could not remember, whether she could be certain about the sequence of events.
This is precisely the kind of institutional contamination that judicial misconduct proceedings create: colleagues who admire the judge in question are dragged into a public forum and subjected to professional scrutiny, their loyalty to a friend in tension with their obligation to tell the truth.
The implications for the District Court more broadly are considerable. Whatever the Panel ultimately finds, the reputational shadow cast over the bench is real.
The allegations against Aitken — that a sitting judge heckled a Deputy Prime Minister, tried to gate-crash a political fundraiser, and invoked the authority of “a room full of judges next door” - touch upon the most sensitive constitutional nerve of all: the relationship between the judiciary and politics.
If judges are seen to take partisan positions, to intervene in political matters, to use their institutional status as a form of pressure on politicians, then the public trust that undergirds the entire justice system is undermined.
The panel’s special counsel made this explicit in his opening submissions, noting that the hearing’s purpose was protective rather than punitive — aimed at maintaining public confidence in, and the impartiality of, the judicial system.
The damage, however, extends beyond the District Court. This is New Zealand’s first-ever Judicial Conduct Panel substantive hearing. Every future proceeding, every future complaint, every future question about judicial accountability will be understood in reference to this case.
Special Counsel Tim Stephens KC noted in his opening submissions that this was the first time in New Zealand history that a judicial panel process had reached a substantive hearing, and that it was therefore a matter of constitutional importance. The precedent set here will shape the constitutional architecture of judicial accountability for a generation. That it is being set in this way — through an incident at a Christmas function at a private club — adds a note of the absurd that is itself consistent with the Greek tragic tradition. Oedipus brought down a dynasty; Aitken has reshaped constitutional law. The disproportion between cause and consequence is, in each case, breathtaking.
The Apology: Contrition and Its Complications
Greek tragedy frequently turns on the question of recognition — anagnorisis, the moment when the protagonist sees, finally, what they have done and who they are. In some tragedies, this recognition comes too late; in others, it arrives but is insufficient to reverse the consequences already in motion.
Judge Aitken wrote letters of apology in the immediate aftermath of the incident. Before the Panel, she confirmed she had felt “pressured” to write those letters, suggesting that the contrition expressed in them may not have been entirely voluntary.
This is a significant complication. An apology given under institutional pressure is not the same thing as the authentic self-recognition that might, in another context, have mitigated the proceeding.
Moreover, her defence throughout — both in the judicial review and before the Panel — has been vigorous and combative. Her counsel David Jones KC characterised the NZ First witnesses’ accounts as “rubbish,” accused the party of seeking “leverage” over the judiciary through the proceedings, and mounted an aggressive cross-examination of each witness. While this is entirely within the rights of a respondent to a serious disciplinary proceeding, it sits uneasily with the earlier apologies.
The Constitutional Dimension: Nemesis and the Institutional Order
In Greek tragedy, nemesis is not simply bad luck or external misfortune. It is the mechanism by which the universe corrects the transgression of proper order. It is, in essence, proportional: the punishment fits the transgression not in its severity but in its nature. The person who violated boundaries is brought to account through a process that is itself focused on boundaries — on what is proper, on where the limits lie.
The Judicial Conduct Panel process is, in this sense, perfectly fitted to the offence. Judge Aitken’s alleged conduct concerned the violation of the boundary between the judiciary and politics. The process examining that conduct requires the most careful drawing of constitutional lines: What is the standard of conduct expected of a judge? What constitutes a breach sufficiently serious to warrant removal? What is the proper scope of the inquiry? Who may appear, and in what capacity?
At every stage, the proceedings are an extended meditation on the question of proper limits — the very question that was allegedly transgressed in a stairwell of the Northern Club on a November evening.
The irony is acute. A judge who has spent twenty years adjudicating the proper limits of others’ conduct, deciding where individuals overstepped and what consequences should follow, now finds those questions being asked of her. The machinery she has operated throughout her career has turned to examine her. This is nemesis in its most precise form.
Options for the Future: Roads from the Ruin
Greek tragedy does not always end in death. Oedipus gouges out his eyes but survives. Orestes, having committed the unavoidable crime and after torment by the Erinyes (the Furies) undergoes trial and is ultimately acquitted. The aftermath of the catastrophe offers choices, and those choices define what kind of tragedy this ultimately is.
Judge Aitken faced a set of options which might have been available to her.
If the Panel had recommended removal from office the Acting Attorney-General Paul Goldsmith would then exercise his own personal judgment on whether to proceed. Even a recommendation for removal is not binding; Goldsmith had “absolute discretion” and could opt against removal regardless of the Panel’s findings.
If removal had occurred, Aitken’s legal career was not necessarily over. Removal from the bench does not prevent practising as a barrister or solicitor. She is an accomplished lawyer and could have potentially returned to practice — though the reputational consequences would be severe and the transition from the bench back to the bar is rarely straightforward in such circumstances.
The Greek parallel here might be Oedipus in exile: diminished, marked, but not destroyed, carrying the burden of recognition wherever she goes.
In fact the Panel recommended against removal, holding that the conduct alleged was proven but not serious enough to warrant a recommendation for removal.
Even in this final and actual scenario, however, the reputational damage is likely permanent. Her name will always be attached to the first Judicial Conduct Panel hearing in New Zealand history. The cloud over her prospects for the future may never fully lift.
Continued service on an altered trajectory? She has survived the process with her position intact. She may return to the District Court bench in Auckland where indeed she has continued to sit and continue her work in therapeutic justice — the Alcohol and Other Drug Treatment Court, the work that colleagues most warmly praised.
This would be a form of the Greek tragic resolution in which the protagonist, having been brought low, finds a constrained but still meaningful path forward. Having been beset by the Furies of the Judicial Conduct process she achieves a form of catharsis. It is not the elevated trajectory her talent suggested; it is, perhaps, a more honest one.
Conclusion
The case of Judge Ema Aitken before the Judicial Conduct Panel is, viewed through the lens of Greek tragedy, a study in the particular dangers that attend exceptional people who occupy positions of exceptional institutional power.
The elements are all present: the protagonist of genuine stature and achievement; the fatal moment of overreach, where the habit of authority overwhelmed the obligation of restraint; the hubris that expressed itself not only in the original act but in the months of combative legal proceedings that followed; the chorus of colleagues dragged uncomfortably into the public arena; the nemesis delivered by a constitutional mechanism perfectly suited to the offence; and the open question of recognition — whether the protagonist has truly understood what happened, or whether, like so many Greek heroes, she will maintain until the end that she was, fundamentally, right.
What makes this tragedy genuinely Sophoclean rather than simply cautionary is that Judge Aitken is not a villain. The warmth of her colleagues’ testimony, the quality of her judicial work, her commitment to therapeutic justice and to Treaty principles, her decades of service — these are real.
The tragedy is not that a bad person was caught. It is that a very good judge, on one evening, forgot for a moment which room she was in. In Greek tragedy, that is always enough.
David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - Where this article was sourced
This is not merely a case about whether a judge yelled at a politician at a private club function. It is a story about identity, status, pride, the abuse of professional standing, and the peculiar vulnerability of those who occupy positions of institutional authority when they forget — even briefly — the obligations that come with that authority.
It is, in almost every structural and psychological sense, a Greek tragedy unfolding in real time.
The Protagonist: Status and the Judicial Identity
No Greek tragedy can begin without establishing the stature of the protagonist. In Sophocles’ Oedipus Rex, Oedipus is king. In Aeschylus’ Agamemnon, the protagonist commands armies. The tragedy derives its power precisely because someone important falls. Judge Ema Aitken, by any measure, is such a person.
By the time of the Northern Club incident on 22 November 2024, Judge Aitken had accumulated approximately two decades of distinguished public service. Her colleague Judge David McNaughton gave evidence before the Judicial Conduct Panel that she was “one of the best judges on our bench,” that her judgments were “sound” and “well-reasoned,” and that she would have made “an excellent High Court judge” — indeed, he ventured, she had perhaps been “too good” for the District Court.
She had played a pivotal role in establishing New Zealand’s Alcohol and Other Drug Treatment Court, a genuinely innovative therapeutic justice initiative. She and her husband, intensive care specialist Dr David Galler, had undertaken humanitarian work in Samoa. She was, in short, not merely a judge but an institution — admired, mentored colleagues, and occupied a position of considerable moral and professional authority within the legal community.
In the Greek tragic tradition, this is the necessary condition for the drama that follows. A person of no consequence cannot be the subject of tragedy. The fall must be from height. Judge Aitken’s height was considerable.
The Fatal Evening: Hamartia at the Northern Club
On the evening of 22 November 2024, two separate functions were being held at Auckland’s Northern Club. One was a farewell dinner for District Court judges, at which Judge Aitken was herself a guest of honour - the occasion marking the resignation of her own full-time judicial warrant. The other was a New Zealand First fundraising event, at which Deputy Prime Minister Winston Peters was speaking.
What occurred in the stairwell connecting these two worlds and the facts found by the Panel is the peripeteia — the sudden reversal — that sits at the heart of this tragedy.
According to NZ First witnesses, including party secretary Holly Howard, board member Dorothy Jones, and Customs Minister Casey Costello, Judge Aitken descended a staircase, heard Mr Peters speaking about tikanga Māori being taught in law schools.
The Judicial Conduct Panel found she said audibly “He’s lying!” or “That’s a lie” before attempting to enter the private function and turning to Costello with the rhetorical challenge: “How can he say that?” Howard described having to physically block Aitken with outstretched arms.
Judge Aitken’s own account was markedly different. She says she “mouthed” a comment inaudibly, that she did not recognise Peters’ voice, did not know it was a political event, and that the entire episode was a momentary, reflexive reaction to what she believed was a factually incorrect claim about the law.
In her evidence before the panel, she acknowledged the conduct was “reactionary and rude,” not consistent with her usual character or reputation, and attributed it partly to tiredness after a difficult day in court.
The factual dispute was profound and was addressed by the Panel although it seemed clear that at the time she made the remarks the Judge was unaware that the speaker was Mr. Peters. But for the purposes of a tragic analysis, it matters less exactly what she said and more what the moment reveals about the underlying dynamics at work.
Even in her own account, something significant is disclosed: a judge, on the occasion of her own judicial celebration, descending a staircase and being unable to stop herself from commenting — however quietly — on another person’s speech on a matter of law.
The impulse to correct, to assert, to intervene, even in the wrong context and at the wrong moment, is itself revealing. It is the impulse of someone who has been an authority for so long that the habit of correction has become instinctive, the internal governor that might restrain a private citizen failing to operate when it was most needed.
This is the hamartia - not wickedness, not malice, but a failure of self-governance at precisely the moment when self-governance was most constitutionally required.
But the damage from her behaviour extends not only to herself but to the establishment where it took place – the oikos, which in the Greek setting covers not only the “house” but also the broader relationships and social circle surrounding that establishment.
The publicity that the matter has attracted has brought the Northern Club into the picture and as is so often the case, the media takes a delight akin to schadenfreude in using derogatory adjectives like “swanky” or “posh” to draw the establishment – the oikos – into the frame.
Hubris: The Most Greek of Sins
Hubris — hybris in the original — is frequently misunderstood in popular usage as simple arrogance. In the Greek conception it is something more specific and more transgressive: it is the act of placing oneself above the proper order of things, of violating boundaries that exist for good reason, of treating as irrelevant the limitations and obligations that apply to everyone, including oneself.
Crucially, hubris in Greek tragedy is often not a sudden aberration but a long-cultivated habit of mind that has simply, in a given moment, expressed itself in a context where its consequences are catastrophic.
The case of Judge Aitken is shot through with hubris in this precise sense, and it is visible not merely in the Northern Club incident but in her conduct in the months that followed.
Consider, first, the night itself. By her own concession, even in her most favourable account, Judge Aitken heard a voice making what she considered an incorrect legal claim and responded to it. Whatever the volume of her response, the impulse was the same: a judge, at a private social function, believed that her view of the law entitled her to intervene in a speech being given to a private audience in an adjoining room.
There is something constitutionally remarkable about this. The independence of the judiciary — the very protection that Judge Aitken has throughout these proceedings sought to invoke in her defence — exists precisely so that judges can make decisions without fear or favour from politicians.
The corollary of that independence is that judges must maintain equal distance from all political actors and all political questions. To interject into a politician’s speech, even about a legal matter, even quietly, is to violate that distance. Constitutional convention does not require judges to have no views on the law; it requires them not to express those views in ways that compromise their impartiality or the appearance of impartiality.
When Judge Aitken heard that voice and felt compelled to respond, she was, whatever her intentions, asserting the primacy of her legal authority over the norms of judicial restraint that make that authority legitimate.
Second, consider her conduct in the immediate aftermath. Rather than retreating to quiet contrition, the judge became the subject of competing public statements and then launched judicial review proceedings to prevent the Judicial Conduct Commissioner’s recommendation from taking effect.
The High Court initially granted interim orders on the basis that convening a Panel was a serious step that could increase public pressure on the judge and potentially compromise her independence — a somewhat circular observation, given that it was her own conduct that had created the situation.
The judicial review itself, which ultimately failed entirely, had the effect of delaying proceedings by months and generating considerable additional public attention. One might view this as an entirely legitimate exercise of legal rights.
But viewed through the lens of Greek tragedy, it reads differently: it is the protagonist, having committed the hamartia, refusing to accept the consequences, marshalling every available resource to avoid accountability, and thereby compounding the original act with a further assertion of special status.
Third — and here the hubris becomes most explicit — there is the remarkable matter of the Panel hearing itself.
Judge Aitken, or those acting on her behalf, sought to accompany the Panel on its visit to the Northern Club to examine the layout of the premises. ‘
When the panel chair, retired Court of Appeal Judge Brendan Brown KC, declined this request on the grounds that it would not be appropriate for the subject of the inquiry to accompany them, he was met with her counsel’s observation that she had only attended “a handful of times” over the years — as if frequency of attendance were somehow relevant to the appropriateness of the request.
This is a small moment, but symbolically it speaks volumes. The instinct to be present, to be included, to retain control even of the process directed against her, is the instinct of someone accustomed to commanding every room they enter.
There is also the matter of her evidence itself. While giving testimony, Judge Aitken offered a lengthy and nuanced explanation of her constitutional philosophy — describing how she always glances at the New Zealand coat of arms when entering a courtroom to remind herself to “judge without fear or favour, affection or ill will.” This is a beautifully articulated sentiment. But its delivery in the context of proceedings examining whether she behaved with inappropriate political partisanship carries a faint quality of the Sophoclean dramatic irony in which the character’s words reveal the very opposite of what they intend.
The judge who prides herself publicly on her constitutional commitment to impartiality is the same judge who found herself unable to stay silent when a politician said something she believed was legally wrong.
The Chorus: Colleagues, the Bench, and the Wider Judiciary
In Greek tragedy, the chorus exists to articulate the social consequences of the protagonist’s fall — to voice what the community feels, to contextualise the personal drama within the larger world. In this case, the chorus is the New Zealand judiciary itself.
The implications of Judge Aitken’s conduct for her judicial relationships have been both immediate and profound. The most direct evidence of relational damage came in the form of witnesses before the Panel: fellow District Court judges who had been at the same dinner table on the night in question were summoned to give evidence — not by Aitken herself (she said she had deliberately chosen not to ask colleagues to appear, not wishing to put them in a difficult position) but by the Special Counsel for the inquiry.
This is itself a form of Greek dramatic irony. The judge’s consideration for her colleagues, expressed as an unwillingness to make demands of them, was superseded by the process itself. Colleagues were required to speak publicly about a fellow judge’s conduct whether they wished to or not.
Judge Sinclair, for example, found herself in the uncomfortable position of being cross-examined about what she had or had not heard, what she could or could not remember, whether she could be certain about the sequence of events.
This is precisely the kind of institutional contamination that judicial misconduct proceedings create: colleagues who admire the judge in question are dragged into a public forum and subjected to professional scrutiny, their loyalty to a friend in tension with their obligation to tell the truth.
The implications for the District Court more broadly are considerable. Whatever the Panel ultimately finds, the reputational shadow cast over the bench is real.
The allegations against Aitken — that a sitting judge heckled a Deputy Prime Minister, tried to gate-crash a political fundraiser, and invoked the authority of “a room full of judges next door” - touch upon the most sensitive constitutional nerve of all: the relationship between the judiciary and politics.
If judges are seen to take partisan positions, to intervene in political matters, to use their institutional status as a form of pressure on politicians, then the public trust that undergirds the entire justice system is undermined.
The panel’s special counsel made this explicit in his opening submissions, noting that the hearing’s purpose was protective rather than punitive — aimed at maintaining public confidence in, and the impartiality of, the judicial system.
The damage, however, extends beyond the District Court. This is New Zealand’s first-ever Judicial Conduct Panel substantive hearing. Every future proceeding, every future complaint, every future question about judicial accountability will be understood in reference to this case.
Special Counsel Tim Stephens KC noted in his opening submissions that this was the first time in New Zealand history that a judicial panel process had reached a substantive hearing, and that it was therefore a matter of constitutional importance. The precedent set here will shape the constitutional architecture of judicial accountability for a generation. That it is being set in this way — through an incident at a Christmas function at a private club — adds a note of the absurd that is itself consistent with the Greek tragic tradition. Oedipus brought down a dynasty; Aitken has reshaped constitutional law. The disproportion between cause and consequence is, in each case, breathtaking.
The Apology: Contrition and Its Complications
Greek tragedy frequently turns on the question of recognition — anagnorisis, the moment when the protagonist sees, finally, what they have done and who they are. In some tragedies, this recognition comes too late; in others, it arrives but is insufficient to reverse the consequences already in motion.
Judge Aitken wrote letters of apology in the immediate aftermath of the incident. Before the Panel, she confirmed she had felt “pressured” to write those letters, suggesting that the contrition expressed in them may not have been entirely voluntary.
This is a significant complication. An apology given under institutional pressure is not the same thing as the authentic self-recognition that might, in another context, have mitigated the proceeding.
Moreover, her defence throughout — both in the judicial review and before the Panel — has been vigorous and combative. Her counsel David Jones KC characterised the NZ First witnesses’ accounts as “rubbish,” accused the party of seeking “leverage” over the judiciary through the proceedings, and mounted an aggressive cross-examination of each witness. While this is entirely within the rights of a respondent to a serious disciplinary proceeding, it sits uneasily with the earlier apologies.
The Constitutional Dimension: Nemesis and the Institutional Order
In Greek tragedy, nemesis is not simply bad luck or external misfortune. It is the mechanism by which the universe corrects the transgression of proper order. It is, in essence, proportional: the punishment fits the transgression not in its severity but in its nature. The person who violated boundaries is brought to account through a process that is itself focused on boundaries — on what is proper, on where the limits lie.
The Judicial Conduct Panel process is, in this sense, perfectly fitted to the offence. Judge Aitken’s alleged conduct concerned the violation of the boundary between the judiciary and politics. The process examining that conduct requires the most careful drawing of constitutional lines: What is the standard of conduct expected of a judge? What constitutes a breach sufficiently serious to warrant removal? What is the proper scope of the inquiry? Who may appear, and in what capacity?
At every stage, the proceedings are an extended meditation on the question of proper limits — the very question that was allegedly transgressed in a stairwell of the Northern Club on a November evening.
The irony is acute. A judge who has spent twenty years adjudicating the proper limits of others’ conduct, deciding where individuals overstepped and what consequences should follow, now finds those questions being asked of her. The machinery she has operated throughout her career has turned to examine her. This is nemesis in its most precise form.
Options for the Future: Roads from the Ruin
Greek tragedy does not always end in death. Oedipus gouges out his eyes but survives. Orestes, having committed the unavoidable crime and after torment by the Erinyes (the Furies) undergoes trial and is ultimately acquitted. The aftermath of the catastrophe offers choices, and those choices define what kind of tragedy this ultimately is.
Judge Aitken faced a set of options which might have been available to her.
If the Panel had recommended removal from office the Acting Attorney-General Paul Goldsmith would then exercise his own personal judgment on whether to proceed. Even a recommendation for removal is not binding; Goldsmith had “absolute discretion” and could opt against removal regardless of the Panel’s findings.
If removal had occurred, Aitken’s legal career was not necessarily over. Removal from the bench does not prevent practising as a barrister or solicitor. She is an accomplished lawyer and could have potentially returned to practice — though the reputational consequences would be severe and the transition from the bench back to the bar is rarely straightforward in such circumstances.
The Greek parallel here might be Oedipus in exile: diminished, marked, but not destroyed, carrying the burden of recognition wherever she goes.
In fact the Panel recommended against removal, holding that the conduct alleged was proven but not serious enough to warrant a recommendation for removal.
Even in this final and actual scenario, however, the reputational damage is likely permanent. Her name will always be attached to the first Judicial Conduct Panel hearing in New Zealand history. The cloud over her prospects for the future may never fully lift.
Continued service on an altered trajectory? She has survived the process with her position intact. She may return to the District Court bench in Auckland where indeed she has continued to sit and continue her work in therapeutic justice — the Alcohol and Other Drug Treatment Court, the work that colleagues most warmly praised.
This would be a form of the Greek tragic resolution in which the protagonist, having been brought low, finds a constrained but still meaningful path forward. Having been beset by the Furies of the Judicial Conduct process she achieves a form of catharsis. It is not the elevated trajectory her talent suggested; it is, perhaps, a more honest one.
Conclusion
The case of Judge Ema Aitken before the Judicial Conduct Panel is, viewed through the lens of Greek tragedy, a study in the particular dangers that attend exceptional people who occupy positions of exceptional institutional power.
The elements are all present: the protagonist of genuine stature and achievement; the fatal moment of overreach, where the habit of authority overwhelmed the obligation of restraint; the hubris that expressed itself not only in the original act but in the months of combative legal proceedings that followed; the chorus of colleagues dragged uncomfortably into the public arena; the nemesis delivered by a constitutional mechanism perfectly suited to the offence; and the open question of recognition — whether the protagonist has truly understood what happened, or whether, like so many Greek heroes, she will maintain until the end that she was, fundamentally, right.
What makes this tragedy genuinely Sophoclean rather than simply cautionary is that Judge Aitken is not a villain. The warmth of her colleagues’ testimony, the quality of her judicial work, her commitment to therapeutic justice and to Treaty principles, her decades of service — these are real.
The tragedy is not that a bad person was caught. It is that a very good judge, on one evening, forgot for a moment which room she was in. In Greek tragedy, that is always enough.
David Harvey is a former District Court Judge and Mastermind champion, as well as an award winning writer who blogs at the substack site A Halflings View - 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.