Sir David Baragwanath: it's how you play the game

His distinguished career, as Queen’s Counsel and judge of the High Court and Appeal Court of New Zealand among various high profile positions, now sees Sir David Baragwanath take on the Presidency of the Special Tribunal for Lebanon, the first international tribunal to adjudicate on terrorism as an international crime.

ANN MCMILLAN

Arriving home from work, Judge Baragwanath appears athletic and much younger than his years, seeming more like a senior QC in his elegant three-piece pinstripe suit than a renowned national and international judge. Penetrating eyes, which can appear both welcoming and stern, gaze steadily from a rugged face topped by distinguished silver-grey hair. But the man who, minutes later, perches himself on a leather camping stool in the spare room seems much less forbidding.

David Baragwanath is discussing his work at his apartment in The Hague the evening before he and his wife, Susan, set off early the next morning to drive across Europe to Switzerland where they will spend time skiing with their family. Leaning against the wall, glass in hand, Baragwanath ruefully eyes the papers strewn across the desk and the back-room clutter. ‘Susan will kill me for bringing you in here!’ He chuckles as he takes a sip from his glass. He’s good at putting people at ease.

Sticking to his guns

Nevertheless, a determination to adhere to what he believes to be right, regardless of whether it might be inconvenient or unpopular, is clear, for example, in his history of championing Maori rights. And there are other principles for which he has fought, such as the promotion of economic and social rights and his push for greater government accountability under the Official Information Act. This is to name only a few of his battles for the law to be used as an instrument for justice. As the archives of the New Zealand press attest, numerous articles have been published on Baragwanath’s decisions and their ramifications.


‘A lawyer without history or literature is a mechanic, a mere working mason, if he possesses some knowledge of these, he may venture to callo himself an architect’


Sir David Baragwanath
quoting Sir Walter Scott

 

Now more than ever, as he navigates tricky waters as President of the Special Tribunal for Lebanon (STL) and Presiding Judge of its Appeals Chamber, his experience and determination will without doubt serve him well. Richard Goldstone, the first Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia and Honorary President of the IBA Human Rights Institute, believes he’s more than equal to the task. ‘He has a well-earned reputation as a judge and a staunch supporter of human rights and their protection,’ says Goldstone. ‘The STL is fortunate indeed to have recruited him as its President. It is a difficult and complex task and I can think of no one better suited to the position.’

Ambassador Hans Corell, former Legal Counsel of the United Nationsand Vice-Chair of the IBA Human Rights Institute, was involved in the establishment of all existing international criminal tribunals except the STL.He say sBaragwanath is a ‘highly inspiring acquaintance to make for several reasons’. Prominent among them was Baragwanath’s track record in dealing with Maori rights. ‘His experiences must be invaluable for dealing with the broader question of the treatment of indigenous peoples around the world,’ says Corell.

The Tribunal, which has the important job of investigating and prosecuting those who assassinated former Lebanese Prime Minister Rafiq Hariri in 2005, as well as a number of others, also has to deal with its own unique character and the circumstances under which it was established. For instance, the Tribunal recently considered a defence challenge to the legality of its establishment under a UN Security Council resolution.

Nine out of ten judges, from both the trial and appeals chambers of the STL, decided they had no jurisdiction to consider the issue. Judge Baragwanath gave a dissenting opinion. He felt that the Tribunal should not shy away from accepting jurisdiction, even if over hearing arguments on the delicate issue of its own legality. The alternative would be to leave the defence with nowhere to take their case. He says of this decision, ‘I considered it was my duty in terms of the Rule of Law’ to make a determination. Baragwanath ultimately determined that the Tribunal had indeed been validly set up.

As for the future, Judge Baragwanath is deeply committed to seeing the Tribunal complete its work as the first to prosecute terrorism as an international crime. He even hopes the STL may be a forerunner for an international tribunal for terrorism along the lines of the International Criminal Court.

Most immediate for Baragwanath is his hope that the STL’s work will help to increase respect for the rule of law in Lebanon, and by extension the troubled region in which it finds itself. As Lebanon faces a new wave of bombings, including renewed political assassinations, it seems an optimistic ambition. But Judge Baragwanath’s philosophy is not grounded in negative thinking: you fight for justice, no matter what the odds, just as you fight hard in sport.

This sporting life

Coming from a culture that reveres sport, Baragwanath enjoys the competition and adventure that almost any physical challenge can offer. He sailed around the bays of Auckland as a child and, at Oxford University, he revelled in rowing. But it was rugby at which he excelled as a front-row forward, a position requiring strength and skill in equal measure. He was a formidable talent,
easily making it into the first XV.

But injury put paid to any ambition to take rugby further. It may seem at odds with the eminent jurist he is today, but photographs from earlier times of a young man in rugby kit reveal the hardy ruthlessness that Antipodeans are renowned for bringing to the sports field and beyond.

David Baragwanath remains an enthusiastic sportsman, especially enjoying skiing, which is perhaps why he sometimes feels constrained by the hours spent at a desk that judging requires and looks forward to launching down the piste. It is one of the many common interests he shares with his wife, though he readily concedes ‘she is the better skier’.

While he may count Montaigne’s Essays and Robert Ryan’s On Politics among his favourite books, Baragwanath is also a man of action. He draws parallels between the physical and intellectual demands of sport and the law, both fields of endeavour that he says require dynamism, quick thinking and a thirst for challenge. He not only sees connections between activities which at first glance seem as alike as chalk and cheese but also has a broad vision of life and responsibility. This is perhaps not surprising given his upbringing.

Judge Baragwanath describes his parents in a characteristically precise manner as ‘good people not prissy, pious or pompous’. And the intimation is that these are traits he both admires and aspires to. He adds, tongue-in-cheek, ‘my selection of parents I take particular credit for’. His mother, Eileen, was a Welsh teacher who sustained his father, The Very Reverend Owen Baragwanath OBE. A well-known minister and Chaplain Commandant to the New Zealand Military Forces, his colourful and engaging sermons packed churches and earned him invitations to the US and the UK to speak. Judge Baragwanath describes his father as someone with ‘a considerable world view’ who had his ‘nose pressed to the overseas window’.

Not surprisingly, it wasn’t long before the young Baragwanath found himself out in the world, arriving at the hallowed grounds of Oxford University on a prestigious Rhodes Scholarship to Balliol College in 1964. His first tutorial with Donald Harris QC brought home the imperative of always forming one’s own opinion. He developed a fascination for travel, which included playing second fiddle to his wife’s textile project with female HIV victims in Laos over a period of four years.


‘The STL is fortunate indeed to have recruited him as its President. It is a difficult and complex task and I can think of no one better suited to the position’


Richard Goldstone
Prosecutor of the International Criminal
Tribunal for the former Yugoslavia; IBAHRI Honorary President

The experience of being an outsider looking in on an unknown world has served him well. Given the responsibility of applying the law in, and for, such diverse cultures as the Samoan, Maori or Lebanese, he appreciates that the first duty of a judge is to understand ‘not only the statute, but society’. That understanding encompasses everything, from the law through to arts and cuisine. He nominates his three favourites as ‘a New Zealand barbecue, an English roast, and everything Lebanese’. In fact, he says jokingly, ‘l’ll happily sit down to anything not tripe!’ The impression is inescapable that this applies as much to the courtroom as the dining room.

As well as Queen’s Counsel and judge of both the High Court and Appeal Court of New Zealand, Baragwanath has served as Presiding Judge of the Court of Appeal of Samoa.

From 1996 to 2001 he was President of the New Zealand Law Commission and in 2011 was awarded a knighthood for services to the Court of Appeal of New Zealand. David Baragwanath’s place in his country’s legal history is assured: as defence counsel he argued, and won, the cases which reinstated the 1840 Waitangi Treaty protecting the rights of the indigenous Maori population of New Zealand. These were landmark victories with profound implications for New Zealand society and for Baragwanath himself.

A defining moment and a chance to make history

At the tender age of 24, Baragwanath made his debut in the New Zealand High Court. And this one case clearly sticks out in his memory, a case that, more than any other, shaped his future as a lawyer and judge. Prosecuting a Maori man who was fishing clams on a New Zealand beach, he won the case and at the time felt the thrill of success: ‘I am a sportsman and I like winning!’ But as he later came to realise, it was a pyrrhic victory.

The case had seemed straightforward enough: it had long been settled law that the fishing rights of the Maori people, said to be enshrined in an 1840 document called the Waitangi Treaty, were unenforceable. But were the earlier decisions right? Had they taken into account the history and purpose of the Treaty? These were questions Baragwanath later felt he had not asked himself and, as a consequence, he had not brought the right answers to the courtroom. It was his job as prosecutor to be a reliable guide to the judge and, in retrospect, he feels he failed.
He should have dug deeper. Judge Baragwanath says that he made a ‘grave error’. However, it seems he also learnt that, for him at least, the law was more about justice than winning.

More than two decades later – in a denouement worthy of a Hollywood film – he was given the chance to right the wrong and make history in the process. In remarkably similar circumstances, Baragwanath defended, in the Court of Appeal, the fishing rights of the Maori man’s tribe, the reverse position to that he had taken over 20 years earlier. It was a curious twist of fate, even more so when Baragwanath won again.

This apposite symbolic victory was the icing on the cake of David Baragwanath’s indefatigable effort to defend Maori land rights. Three years earlier, Baragwanath had won a case that reinstated the Waitangi Treaty as an integral part of New Zealand law. Its impact was felt far and wide. Maori rights across vast swathes of land were now protected. As Justice Robin Cooke (later Lord Cooke), then President of the Court of Appeal and widely regarded as the country’s most eminent jurist, said at the time: ‘This case is perhaps as important for the future of our country as any that has come before a New Zealand Court.’


‘He has a unique ability to draw together from a wide range of experience […] in order to resolve problems in areas where there is otherwise little guidance’


Justice Paul Heath
Member of the New Zealand Law Commission

However, powerful economic interests were at work and tensions had been stoked. When the New Zealand Government later tried to sell off land to state corporations, the sales were blocked by the Treaty. Some New Zealanders, resentful of the financial claims subsequently pursued by the Maori, partly laid the blame at the door of ‘innovators’ like Baragwanath. Writing in the New Zealand press, author Agnes-Mary Brooke accused those who campaigned for greater recognition of the legal force of the Waitangi Treaty ‘of advancing the interests of activist minority groups at the expense of the majority’.

Settling the issues of the rights of indigenous people has been a controversial and hard-fought issue for individuals and groups around the world, from Australia’s Aborigines to Native Americans. Each society must take its own path to justice, but there is no doubt that as far as New Zealand is concerned David Baragwanath’s contribution has been pivotal.

Julian Miles QC has assigned a prominent role in this fundamentally important national issue to Baragwanath, saying that ‘much of the jurisprudence in the Maori land cases was due to David’s ideas’. Baragwanath does not seem to mind if his determination to see justice done made him unpopular in some quarters. He is adamant that the law is there to protect everyone equally: ‘The law and the constitution are the right not of lawyers and judges but of the whole community.’

The fine art of judging

At the same time, Baragwanath’s expansive perspective meant that he became well-known in New Zealand courts for the colour he brought to his judicial decisions, drawing from works of history, philosophy, economics and literature. While acknowledging the comment was of its time, he quotes Sir Walter Scott: ‘A lawyer without history or literature is a mechanic, a mere working mason, if he possesses some knowledge of these, he may venture to call himself an architect’. But perhaps Baragwanath’sreputation says more about his ‘wide view of the law’ than his broad education.

Baragwanath also drew from an unusually large reservoir of jurisprudence, citing cases from multiple jurisdictions in an era when international law was often derided in national courts. A former colleague from the High Court and fellow member of the New Zealand Law Commission, Justice Paul Heath, put it neatly when he observed that David Baragwanath ‘has a unique ability to draw together from a wide range of experience […]in order to resolve problems in areas where there is otherwise little guidance’.

Appreciation of Judge Baragwanath’s approach to the law, and those engaged in it, has been widespread. On Baragwanath’s retirement from the New Zealand Court of Appeal, a former student, Max Harris, took the time to write a paper reviewing his career. What stood out to Harris was the time that Baragwanath was prepared to spend helping others, especially students. Harris noted with surprise an occasion when, before a lecture he was about to give at the University of Auckland, Baragwanath had spent more than an hour with him, a student, ‘despite the fact that he had never heard of me’.

Harris goes on to describe Baragwanath as ‘creative and adventurous’, someone who had the big picture, ‘a vision of the law’. This included an unshakeable belief that economic and social rights, often regarded as the poor relation of civil and political rights, should be better protected. Baragwanath’s attempts as a judge in the High Court of New Zealand to develop the right to education and to housing through common law were ultimately rejected by the Court of Appeal. Nevertheless he may have partly achieved his aim, as Harris observes: ‘Justice Baragwanath has initiated a dialogue in many fields of the law about the future path of the law, and the principles that ought to guide lawmakers...’. He has opened the doors; it remains for others to pass through them.

In terms of commitment to equality it is not surprising to learn that the Baragwanaths are a team. Susan, a former school head, founded a highly successful ‘second-chance’ school in New Zealand for teenage mothers who had missed out on education. Hailed as an innovative model, it not only led to several similar schools opening in New Zealand but was subsequently copied in other countries. Her work in education and with the New Zealand Parole Board has paralleled her husband’s drive for social justice and earned her an honorary doctorate and an Eisenhower Fellowship.

Baragwanath credits his wife with possessing in greater measure the quality he rates most highly in a judge, namely being a good listener and having ‘acuity’, as he describes it: the intuition and talent for ‘reading other people’s thoughts’. It’s not surprising then that the judge who made the most impression on him from other side of the Bench was Justice Robin Cooke: ‘You knew your argument would always be understood and given consideration, that he would get to the high ground of a case, leaving behind the dips and hollows’.


‘Much of the jurisprudence in the Maori land cases was due to David's ideas’


Julian Miles QC

Baragwanath bristles when asked about the greatest compliment he has ever received. ‘I’m not going into that’, he declares with such finality that even a particularly dense counsel would realise the point is not to be pursued.

Nevertheless, it is striking how regularly words like ‘integrity’ and ‘decency’ are used of Baragwanath by those who know him well. Justice Heath wrote, ‘he is someone with a high work ethic and of complete integrity, whom I can best describe as an intelligent, conscientious and dedicated man whose primary desire is to do public good’. The sentiments expressed by those he has mentored, such as Max Harris, echo those of his contemporaries: ‘the values of “dignity and decency”, which Justice Baragwanath has suggested lie at the core of parts of the common law, also underpin his own character’.

It’s a character that bodes well for the future of the Special Tribunal on Lebanon. Nevertheless, to describe the effort required he calls upon one of his favourite sources of inspiration, and quotes the Queen of Hearts in Lewis Carroll’s Alice in Wonderland:
‘My dear, here we must run as fast as we can, just to stay in place. And if you wish to go anywhere you must run twice as fast as that.’

At this stage in his career there is much to reflect upon and much yet to do. But on this winter evening in The Hague, he is firmly grounded in pre-holiday preparations, anticipating a pleasant drive across Germany, seeing his granddaughter and the rush of cold air on his face as he skis in the Swiss Alps with friends. The year ahead will, as always, bring challenges, ideas and experiences. For Judge Baragwanath, if you are not ‘expanding, you are shriveling’, and, whatever you do in life, you must approach it with ‘fire in your belly’ or there just isn’t much point. Sitting on the sidelines is not going to win the game.