Changes to court system full of flaws

By JAMES ALLAN*

The Government has committed itself to abolishing the Privy Council in London as our highest court and to creating a new Supreme Court. How it is going about it, however, is more reminiscent of Zimbabwe than of the other Western nations, such as Canada and Australia, that some time ago abolished their links with the Privy Council.

In brief, Attorney-General Margaret Wilson and Prime Minister Helen Clark may try to compare what they are doing to what those two democratic countries did, but, in fact, it is nothing like what they did.

Here's why. First off, when Canada and Australia abolished the Privy Council, they did not create some new highest court. The then existing highest domestic court became the top court, full stop (though Australia's abolition was done in two stages).

Why does that matter? The answer is simple. It matters - and it matters a lot - because no single government should ever get to pick all the judges of the highest court.

The dangers of stacking a court with a full complement of politically like-minded appointees - judges with the last word when it comes to interpreting every single piece of legislation ever enacted - is too obvious to have to spell out. It is a fundamental attack on the separation of powers.

To put this in context, I do not know of a single developed, common law country in the past 100 years where one government has picked all the judges of the highest court. As I said, it is more reminiscent of Zimbabwe than of Britain, the United States, Canada or Australia.

"Ah, but wait," comes the reply. "We are going to let a 'panel' decide who is on the new Supreme Court."

Well, if you can say that with a straight face you should move to LA and look for acting work.

Let me be frank. This so-called panel is a worthless safety check. If I had the power to pick a "panel", I could do so in such a way as to get any outcome you wanted me to.

I could pick a "panel" that would choose activist judges; I could pick one that would choose minimalist judges. And if I could do it, so could the Government. (My point is simply that sincere, well-meaning people appointed to panels have differing beliefs, preferences and outlooks. So, if you want a pro-United Nations outcome, you appoint Jimmy Carter.)

There is also the matter of how a "panel" provides convenient cover for the Government. Compare the situation where Margaret Wilson had to defend an appointment she made herself, say of Sir Geoffrey Palmer, versus defending one the "panel" made.

In fact, this proposal for a new Supreme Court is so unconstitutional that the Opposition is within its rights to say it will be an illegitimate court and will be treated as such.

Bill English can - and should - echo what Franklin Roosevelt threatened to do in the 1930s and say that as soon as his party gets back into power (be it three, six or nine years from now) it will immediately appoint six new judges of its own to this Supreme Court. After all, what's good for the Labour goose must also be good for the National gander.

Does this mean abolition of the Privy Council is constitutionally impossible? Of course not. One obvious possibility would be to make the existing Court of Appeal - each and every judge now sitting on that court, no matter who appointed him or her - our new Supreme Court. If a second tier of appeals was wanted, it could be created below this court, not above it.

Alternatively, the Government could give each political party one appointment to this new Supreme Court. In reply to this suggestion I have no doubt that Government defenders would say that they don't want to politicise the court. Of course I agree with the sentiment. But it would be a joke coming from this Government.

Look at the Government's proposal. Margaret Wilson says one of the five judges has to be well-versed in tikanga Maori. Why? It can only be on the assumption that what judges do is to act as surrogate legislators, running around legislating hither and thither. (By the way, this may be an accurate description of some of our judges today, but it is far from a desirable way for judges to behave.)

If judges were seen, instead, as people who tried, honestly and sincerely, to apply the law as written and as intended by the democratically elected Parliament - no doubt with room to fill in gaps where the legislature has left something out or been unclear - there would be no need for knowledge of any set of political beliefs or creeds.

Any good lawyer could interpret properly a statute intended to improve the plight of Maori, whatever the judge's own views about the Treaty of Waitangi or knowledge of tikanga Maori.

The same point could easily be made about the Government's demand that the current Chief Justice, whose expansive views on the treaty and the Bill of Rights are well known, must sit on the new Supreme Court.

Why must she sit? Ah, because she has the title of Chief Justice, comes the reply. Forget the fact that this is a historical relic of a title referring to the chief trial judge; forget the fact our past Chief Justices had little to do with any non-criminal appeals as recently as Lord Cooke's tenure as President of the Court of Appeal; and forget the fact that it is debatable whether the current Chief Justice would have been seen as appointable on merit to the current Court of Appeal.

No, it is abundantly clear to anyone who stops to look at this proposal that it is the Government, and not any naysayers, which is politicising the judiciary. To be complete I should say that any change such as this one first requires that it be put to a referendum and won by the Government.

A new Supreme Court is at least as significant a constitutional step as the move to MMP or any move back to the old voting system.

Can you imagine the response there would be if a government tried to move to a new voting system without a referendum?

The Government is pretending that what is a fundamental constitutional change is simply a bit of everyday updating. That claim is patently false.

Notice what I am and am not claiming. I am not claiming that abolition of the Privy Council cannot be achieved in a perfectly appropriate way. What I am claiming is that the particular proposal being put to us by the Government is inappropriate, indeed unconstitutional.

First off, there should be a referendum. Win that, and no one can complain.

Even leaving that huge omission aside, the present proposal is flawed because it vests in the government of the day the power to appoint all five judges of this new highest court.

Some of that power will be exercised directly by insisting Chief Justice Elias be a member and by insisting on knowledge of tikanga Maori in one of the other four judges. The rest of that power will be exercised indirectly by choosing the people who choose the judges.

In either event, it is a shocking departure from First World standards of constitutional behaviour. Shame on you, Margaret and Helen.

* James Allan is an associate professor of law at Otago University.