TORSUN ARTICLE OF JULY 27, 2008 ON JUDICIAL IMMUNITY

ALAN SHANOFF'S ARTICLE DEFENDING JUDICIAL IMMUNITY

Mr. Shanoff raises the issue of judicial wrong-doing, but his argument in favor of judicial immunity is hardly convincing, perhaps on purpose. His recommendation for a 'Judicial Inquiries Compensation Fund' to compensate civil litigants who did not receive justice in civil cases is entirely laudatory, as this may provide some remedy – compensation – for those litigants who have been cheated out of what they should have got from the judicial process by judges who (as Mr. Shanoff puts it) may have acted 'negligently, with gross negligence, maliciously or corruptly (emphasis added).

There is no remedy currently to deal with judges who abuse their statutory authority by negligently or deliberately misrepresenting (really falsifying) the facts, law and case-law in civil cases (or criminal ones for that matter). As Mr. Shanoff knows or should know, the Judicial Council will only intervene if the judge has behaved improperly – example shown up drunk in court, or made a politically incorrect comment - and there too only when the complainant is or is backed by, a powerful interest group such as feminist or Jewish lobby groups.

The simple fact is that the Judicial Council is a public-relations organization created to protect the image of the judiciary, and not to correct or even limit injustice. I speak from personal experience that a complaint alleging judicial obstruction – the deliberate falsification of facts and law – will simply be dismissed by the Judicial Council on the grounds that 'it is not a Court'. (A shameless passing of the buck...on a flimsy technical excuse.)

And even appeal courts are very reluctant to overturn what they consider 'findings of fact' by lower courts, even if they may have been blatant falsifications. And when they do order new trials in certain cases, (which place additional burdens and delays on the already aggrieved litigants as Mr. Shanoff points out), there is no action taken against the judge(s) concerned. The judges are never held personally accountable and that is why they can and do continue to act 'negligently...maliciously or corruptly'.

In addition to police officers, doctors, engineers, lawyers 'or any other professional' who can currently be sued, today even 'sovereign immunity' has been removed. There is simply no justification for allowing judges this extraordinary and exclusive protection, especially given the high rate of 'miscarriages of justice' that have taken place and will continue to do so.

What Mr. Shanoff fails to acknowledge is that the simple threat of being sued and the ensuing publicity, would force judges to exercise greater diligence.

Removing judicial immunity would also have the additional benefit of resulting in a more equitable balance of power between the legal profession and the judiciary, which is currently so deferential that no lawyer would dare accuse a judge of falsifying facts or law. 

Our judges have not demonstrated honour, and are not worthy of such exclusive protection.