Avoiding political bias in judicial decision-making.
The President of the International Court of Justice, Nawaf Salam, stepped down two years before his term was due to end, after an invitation to become the Prime Minister of Lebanon.
The unicameral Assembly of Representatives’ 128 seats are allocated to various Christian, Muslim, and Druze sects. With 64 seats given to Christians and an equal number given to Muslims and the Druze, getting the two-thirds requirement for appointing a Prime Minister has been difficult.
The Assembly had been in caretaker mode since 2022, with the Assembly unable to agree on a candidate. The PM does not need to be part of the Assembly.
As a result, the ICJ has come under considerable scrutiny. Although a judge can’t be part of any state government, the ability for them to resign and become part of a state government has brought into question its impartiality.
Lebanon is surrounded by instability, with the collapse of the Assad regime in Syria, and Israel’s war with Palestine and its border conflict with Lebanon.
Any ICJ ruling on conflicts in those countries may be tainted by a conflict of interest due to ties between the new Lebanese PM and the ICJ. Even if there isn’t actual bias, an apprehension of potential bias will still be devastating for a court whose jurisdiction depends on the consent of countries.
But this isn’t an isolated incident. Australia has its own history of overlap between the judiciary and the elected government.
It’s a well-known fact that, even though the Westminster system blends the executive and legislative branches of government, Australia has a separate, independent judiciary. It’s often contrasted with the US Senate voting to nominate Supreme Court candidates.
However, this hasn’t always been the case. Of Australia’s 57 High Court judges, 13 were MPs.
At the outset, it should be noted that it is not the author’s intention to conclude that any of the below judges were actually biased. The emphasis here is on the apprehension of bias.
The original court:
Chief Justice Samuel Griffith (1903-1919): First Chief Justice of the High Court. Former Queensland Premier and Chief Justice. He wrote the Criminal Code Act 1899 (Qld), much of the Australian Constitution, and the Judiciary Act 1903 (Cth), which created the High Court
Justice Edmund Barton (1903-1920): First Prime Minister of Australia and Protectionist Party leader, who resigned to join the High Court upon its foundation, even though he hadn’t finished his first term in office.
Justice Richard O’Connor (1903-1912): First Government Leader in the Senate. Like Barton, he resigned to join the High Court. If Griffith was Neil Armstrong and Barton was Buzz Aldrin, then O’Connor was Michael Collins.
Griffith and Barton, in particular, were key framers of the Australian Constitution. The Griffith court was characterised by interpreting the Constitution based on the framers' intentions. This was abandoned with the Engineers Case (1920), after Barton passed away.
Two Opposition Leaders have also been on the High Court, Justice H.V. Evatt (1930-1940) and Chief Justice John Latham (1935-1952). Their judicial philosophies were heavily informed by their politics.
Evatt was the only judge to resign to enter federal politics, and ended up the 3rd President of the UN General Assembly and Labor leader during Robert Menzies’ government.
Latham (of no relation to Mark Latham) is often seen as the most politically ‘compromised’ judge, largely because he was the only judge to uphold the constitutionality of Menzies’ Communist Party ban in the Communist Party Case (1951). The former Nationalist Party leader and Deputy PM’s term is often seen as undermining public confidence in the court's impartiality, creating an apprehension of bias.
The last two MPs appointed to the High Court were Chief Justice Barwick (1964-1981), who may have been appointed because the Attorney-General and Minister of External Affairs was a challenger to Menzies, and Attorney-General and Senate Leader Justice Lionel Murphy (1975-1986).
Murphy is arguably the most politically-driven judge. Having pushed through the Sex Discrimination Act 1975 (Cth) and failing to a Human Rights Bill, he supported territory senators (upholding a bill he helped pass), a right to political representation, free speech, freedom of movement, and use of the external affairs power to adopt UN treaties.
Finally, Justice Edward McTiernan (1930-1976) was appointed one day after Evatt. Both were controversial, as young NSW Labor MPs (although McTiernan had been a federal MP for one year). In one of his final judgments, the First Territory Senators’ Case, he sided with Murphy (in one of his first judgments) to grant the Northern Territory and Australian Capital Territory 2 Senators.
5 more judges have held political office, but their politics are less important for the purposes of this article:
Isaac Isaacs (Justice 1906-1930, Chief Justice 1930-1931), federal Attorney-General.
Justice H.B. Higgins (1906-1929), federal Attorney-General.
Justice Charles Powers (1913-1929), Queensland MP.
Justice Albert Piddington (6 March 1913 - 5 April 1913), New South Wales MP who didn’t want the job.
Chief Justice Adrian Knox (1919-1930), New South Wales MP.
That all being said, our criticisms of bias against High Court judges are influenced by the 21st-century US Supreme Court, whose politics are themselves exaggerated by the media.
Although there were certainly accusations of bias at the time, a lot of the criticism leveled at Chief Justice Latham today is tainted by the US and the increasing polarisation of politics. For example, in R v Burgess; Ex parte Henry (1936), Latham sided with Justices Evatt and McTiernan in taking a broader view of the external affairs power for adopting international treaties as law, whereas fellow conservative Justice Starke opposed that move. This was long before Justice Murphy.
Culture and perspective also play a big role. If the First Territory Senators’ Case was heard today, we’d probably expect Justice Murphy to excuse himself because of potential bias, given that he voted for the legislation being challenged, but we’d agree that the territories having senators would be a foregone conclusion.
In contrast, a lot of conservatives felt that the High Court was biased for upholding Whitlam’s legislation, pointing to Justices McTiernan and Murphy being on the court as proof. We’d expect Murhpy to stand down because of a conflict of interest, not his political beliefs. It’s still bias, but not necessarily political bias.
In fact, the Second Territory Senators Case is a good example of the court not being biased. When conservative premiers Joh Bjelke-Petersen of Queensland and Charles Court of Western Australia challenged the result of the first case, Justices Gibbs and Stephens, who disagreed with the result of the first case, upheld that judgment out of respect for the law.
In Mabo v Queensland (No 2) (1992), Justice Dawson was the only judge to oppose native title. However, recognising that he was the sole dissenter, he said that he preferred Justice Brennan’s version of native title over the versions proposed by other judges, and went on to uphold Mabo in future cases.
So, is the ICJ going to be biased against Syria or Israel, or biased in favour of Lebanon? Probably not. But it’s not impossible.
But in a democratic system like Australia or a system based on voluntary consent of member states, like the UN, judges should take all steps possible to ensure that they aren’t accused of being biased.
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