Mahvash Ikram
District Court Judge Ema Aitken crossed the line between judicial neutrality and political debate when she interrupted a speech by NZ First leader Winston Peters by calling him a liar.
Because of that, the Judicial Conduct Panel inquiring into her conduct at Auckland’s swanky Northern Club on the night of 22 November 2024 should recommend that Aitken be removed from the bench, says Special Counsel Tim Stephens KC.
Stephens was delivering his closing submissions on Thursday at the end of a two-week hearing. The judge, he said, had violated the standards of comity – the separation of powers and mutual respect and restraint that exists between the judiciary, the executive and Parliament in order to maintain public confidence in New Zealand’s constitutional system.
Stephens said Aitken had responded to a senior politician who was addressing his party, in a political setting and on a politically charged subject – Treaty of Waitangi issues and, at the point where Aitken interrupted the meeting, the teaching of tikanga Māori in law schools.
This created constitutional concerns, Stephens said.
Aitken has always maintained she did not know the identity of the speaker before making her comments; Stephens said that was irrelevant.
“[It] all comes back to what’s involved and what’s at stake… and public confidence in their institutions. The fair-minded [and] non-informed observer objectively looking at things is not particularly going to interrogate the judge’s state of mind,” he said.
“It’s a significant problem that needs to be managed effectively because a sitting judge has accused the [then] deputy prime minister of lying in relation to a politically contentious matter.”
Stephens said the context was critical. It was a political event where Peters is said to have been speaking about the Treaty Principles Bill – a live and contentious political issue at the time.
While acknowledging the incident was brief, he said duration was not determinative. The question before the panel was whether the conduct, viewed objectively, was serious enough to meet the statutory threshold for removal.
Stephens submitted that a single incident could be enough to bring judicial impartiality and independence into question for a fair-minded objective observer.
In this case, he argued, publicly accusing a senior politician of lying in the midst of a political event risked aligning the judge with one side of a political debate.
He said that was incompatible with the standards expected of a District Court judge – therefore her removal from office was justified.
Unqualified apology needed
On 10 December 2024, Aitken wrote to NZ First, apologising unreservedly and acknowledging her comments were “rude, uncalled for and inappropriate”, but saying at the time she was not aware the speaker was Peters.
But the fact that she had not apologised to Peters for calling him a liar, instead expressing regret for her “bad manners”, showed the gravity of the situation, Stephens said.
The apology needed to be unqualified and Aitken needed to accept that she had overstepped the mark by engaging with a politician on a controversial subject.
“Even in response to questions from me [during cross-examination] ‘have you apologised to Mr Peters for [saying he was] a liar?’, the answer was ‘no, because what he said was untrue and misinformation’,” he told the panel.
Stephens said throughout the hearing, Aitken had tried to dumb down Peters’ comments by calling them “divisive and derisive”.
“This [hearing]… a very public forum, has been used to make a point that in a sense she would not have made [them] if she knew at the time that Mr Peters was the speaker”.
Stephens said Aitken did not appear to realise that the judiciary was viewed by the public as a single entity. This was evident from her displeasure with the apology that Chief District Court Judge Heemi Taumaunu offered on behalf of the District Court.
“She regarded [her comments] as a personal matter for [which] she was accountable, rather than conduct that brought into review – from the public’s perspective – the institutions of the District Court and the judiciary.”
Earlier in the hearing, Aitken told the panel a media statement released by Taumaunu’s office on 18 December and its use of the phrase “an unfortunate series of events” implied that her conduct was being clustered with the actions of Michael Reed KC – who attempted to gate-crash the NZ First function and demanded to talk to Peters – and Aitken’s partner Dr David Galler, who confronted Cabinet Minister Casey Costello at the event, saying she was “despicable”, responsible for the deaths of hundreds of people, and in the pocket of the tobacco industry.
But despite raising concerns, Aitken said she had to accept the chief judge’s apology.
“It was not my statement, nor a statement being sent on my behalf,” she told the panel. “My input and suggestions were not included in the press release. I had to accept that position as the statement was being released on behalf of the Chief District Court Judge’s office.”
Political discourse?
On 2 December 2024, Aitken sent a private email to Taumaunu which, she said, was “a relatively informal response” to his request for her recollection of events so he could discuss the matter with Chief Justice Dame Helen Winkelmann.
Stephens said she outlined several issues in the email, which may have informed her reaction to Peters’ comments at the Northern Club.
Aitken described her frustration with the court system and went on to say “political will is permanently lacking and the desire for change is being set back daily by misinformation informing current government policy and the absolute disregard for the evidence”.
In the email, the judge recounted an encounter with an ACT Party voter at a dinner hosted by the Helen Clark Foundation after the 2023 general election – an interaction Stephens chracterised as revealing her willingness to participate in political discourse.
“That’s clearly the judge engaging with an unknown member of the public at a function…about why [he] voted for a political party… That is just not a conversation for a judge at a function of this type,” he said.
“It’s no answer to say that she was able to persuade somebody. It’s not the role of the judiciary. It’s the role of democratic politics to resolve these things.”
In her email, Aitken told Taumaunu, “I can no longer stay silent in the face of the sort of divisive and derisive comments that are coming from parts of our society, including some politicians.”
Aitken disputed Stephens’ claims when he put them to her during cross examination.
Her lead counsel David Jones KC will present his closing submissions on Friday.
0 Comments