Will She Stay, Or Will She Go?
John Bowie, LawFuel publisher
A Judicial Conduct Panel has graciously cleared its diary for a fortnight in February to deliberate whether District Court Judge Ema Aitken’s spirited intervention at the Northern Club – the ‘Clubgate Drama’ – merits her departure from the judiciary a fate which, one notes with interest, no judge has yet suffered at the hands of such proceedings.
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The panel, helmed by retired Court of Appeal Judge Brendan Brown KC has issued a minute establishing an agreed timetable for examining the allegations. Those hoping for swift resolution must contain themselves until Easter, when a recommendation on Judge Aitken’s future shall materialise like a particularly consequential chocolate egg.
The incident in question involves Judge Aitken allegedly gate-crashing, or rather, attempting to gate-crash, a New Zealand First function at Auckland’s rather grand Northern Club last November.
The affair featured then-Deputy Prime Minister Winston Peters and, if the complainants are to be believed, Judge Aitken enthusiastically declaring his dishonesty whilst attempting to force entry in a manner more suited to a rugby scrum than judicial decorum.
Judge Aitken, for her part, acknowledges that “an exchange of views” occurred (we must admire the euphemistic delicacy) whilst firmly rejecting suggestions that her conduct exhibited any threatening or aggressive tendencies.
The judicial machinery now grinds forward with special counsel Tim Stephens KC filing his brief of evidence by October 24, followed by the customary volleys of legal paperwork from both camps. The substantive hearing shall unfold in Auckland across two weeks (February 9-13 and 16-20), providing the three-person panel ample time to parse every nuance of this political-judicial collision.
Completing the makeup of the panel is former Governor-General Sir Jerry Mateparae, and Court of Appeal Justice Jillian Mallon, who will then deliver its recommendation to Acting Attorney-General Paul Goldsmith.
The “acting” designation exists because Attorney-General Judith Collins KC, having been among the original complainants, recused herself to avoid any whiff of constitutional awkwardness.
The alleged contretemps received its High Court airing in March, when Judge Aitken mounted an unsuccessful challenge to the panel’s very existence. Stephens, serving as counsel assisting, outlined the complaints with admirable precision:
Judge Aitken allegedly interrupted a New Zealand First gathering and “loudly accused the Deputy Prime Minister of lying” during his speech. She then allegedly “persisted in shouting and making a scene” whilst attempting entry behaviour which, one imagines, somewhat shattered the Northern Club’s cosseted cosyness, sending some for the smelling salts.
When invited to leave, Judge Aitken reportedly invoked her judicial office, a card one might think best kept up one’s well-tailored sleeve, apparently to buttress her position that the Deputy Prime Minister was indeed being economical with the truth.
She further implied that other judges would endorse her view, a suggestion the complainant interpreted as “threatening and aggressive.”
The submissions noted that New Zealand First signage adorned the function, rendering its political character unmistakable even to the casual observer.
Stephens argued that, if established, Judge Aitken’s conduct raises rather thorny questions about judicial independence and that delicate concept of “comity” between judiciary and executive, the constitutional equivalent of not insulting one’s dinner companions whilst still at table.
Whether these February proceedings will produce New Zealand’s first judicial removal via JCC panel remains to be seen. One suspects the wait until Easter will feel considerably longer than the traditional forty days.
