Dame Silvia Cartwright at her home in Epsom. Photo / Dean Purcell
Dame Silvia Cartwright at her home in Epsom. Photo / Dean Purcell
Trailblazing legal crusader Dame Silvia Cartwright has always believed in telling the truth as she sees it. She speaks candidly to David Fisher about longer jail sentences, child poverty and the strain of being Governor-General.
"You can tell I'm not a politician," says Dame Silvia Cartwright. "I'm a judge and a lawyer. You're not expected to consider political implications. In fact, it's wrong to do so."
And with that, she plunged into controversy, comfortable and confident.
Dame Silvia is a trailblazer - the first woman to be Chief Judge of the District Court, first female High Court judge and Governor-General-turned-international jurist on a Cambodian war crimes trial for the United Nations.
This year she returned to live in New Zealand, although still working for the UN as an adviser on inquiries into war crimes from Sri Lanka's civil war.
It was a return feted with a gala dinner organised by the Auckland District Law Society, which arranged the Herald's interview with Dame Silvia. The grandees of New Zealand's legal community - QCs and judges - gathered to hear Chief Justice Sian Elias describe Dame Silvia as "an ordinary woman who has done extraordinary things" through kindness, truth and virtue.
Those truths were not always welcome. As Governor-General, Dame Silvia shot across convention to publicly offer views on issues. She spoke against the Crimes Act section that allowed parents to use "reasonable force" against their children, leaning on knowledge of family law. She corrected then-leader of the National Party Don Brash for incorrectly translating a Maori phrase in the wake of his Orewa speech. Current Cabinet Minister Gerry Brownlee said he'd "lost respect for the Governor-General" when National felt snubbed over its desire to form a new government after the 2005 election.
As someone who had imprisoned others, she told everyone long terms in prison didn't work, about the time Parliament passed laws making sentencing of those convicted harsher.
It wasn't intended to cause upset, says Dame Silvia. It simply happened to be information she knew.
"The research totally agreed with me. The research is still very clear. Those who find it such a visceral matter ... I understand that, but they don't work in the field. They don't see. Should this person go to prison because this is his third offence or should you keep him out ... if you send him in, he's going to be a lot worse when he gets out. They don't understand this."
Dame Silvia Cartwright, first female High Court judge. Photo / Supplied
This isn't liberal talk, she says, but research-based fact, which considered the "community's interests".
"And why would you put some poor, stupid, alcohol-affected person into prison to just make them worse than they are now? It's just not going to work. All the research says prison doesn't rehabilitate. If you send someone to prison to rehabilitate them, that is a very bad motive for sending them."
Dame Silvia had to resign as a High Court judge to take on the role of Governor-General, a job she speaks of as a functional construct rather than one with emotional ties to the House of Windsor.
"Being the Queen's representative has certain aspects to it that many New Zealanders might find a bit old-fashioned because we're not a colony - we're far from it," she says. "The Queen certainly does not tell us what to do and hasn't for a very long time.
"But it is one way of having a de facto Head of State. It is how we developed as a nation and it works," she says.
The prospect of becoming a republic in the near future was "not very likely. We've got close to the appointed president model. I would have personal difficulty with having an elected head of state."
The person elected would likely need to do so with a political mandate, which could create conflict with the executive.
"It's absolutely vital to have an independent de facto head of state, otherwise we don't have a functioning democracy."
By the end of the "contract period" of five years as Governor-General, Dame Silvia was ready to go. Government House is grand but exists to host 200 functions a year, hosting 15,000 guests. Home is the "big, cold apartment upstairs".
"You live above the shop, it's an all-consuming role. You can't go home at night and completely sign off. That was a bit strange. You can fit a lot more into your day that way but you're never free of it."
The day of departure, Dame Silvia and Peter Cartwright left chauffeurs behind and drove out of the gates, heading for Taupo. "By the end of the drive I was over it. I was so pleased to be heading off."
Governor-General Dame Silivia Cartwright with former Prime Minister Helen Clark at Parliament for her state farewell in 2006. Photo / NZME.
Dame Silvia was doubly under-employed, having resigned as a judge to become Governor-General. "I wanted a job. I wanted to keep working." The United Nations was seeking judges for Cambodia. "I applied and, much to my astonishment, I got the job."
IT WAS called the Extraordinary Chambers in the Courts of Cambodia in 2006, but became better known as the Khmer Rouge Tribunal. Its object was to try the senior leaders considered most responsible for the crimes committed by the controlling regime between April 1975 and January 1979. During that time 1.7 million people (including one New Zealander, Kerry Hamill, the brother of long-distance rower Rob Hamill) died as a result of the Khmer Rouge's murderous rule. It was a fifth of Cambodia's population.
"It's hard for us to understand what life was like for them there," she says. "It was kill or be killed - or have your family killed - or do as you're told."
With an atrocity that defies description, anything resembling resolution was going to be difficult. The World Justice Project ranks Cambodia's rule of law in 99th position of 102 countries. It sits between Pakistan (98) and Zimbabwe (100).
"We are not trying to deliver justice. You can't. What we are trying to do is to bring some people to account - too few to pretend it is a just outcome - [and] allow the people a better understanding of what happened. You wouldn't have years enough to have trials for everyone alleged to have committed criminal acts."
A diplomat from the New Zealand Embassy in neighbouring Thailand, lawyer Anais Kedgley Laidlaw, visited Cambodia between 2011 and 2013 and described a court process made to fit the recovery of Cambodia. It was a combination of local and international judges, operating under a French system in a nation that had all but eradicated its judiciary and legal establishment during the purges of the Khmer Rouge.
The trials were broken into sections with five judges - including Dame Silvia - hearing evidence. The first saw the conviction of dictator Pol Pot's lieutenant, Kang Kek Iew. The second trial took four years and finished in August 2014, shortly before Dame Silvia resigned to return to New Zealand with concerns over the health of her husband, Peter. It was a sprawling trial with 1054 witnesses and experts, and 7600 documents of evidence.
It also had 4000 victims as parties to the legal action with lawyers and rights to speak in court. "These are the people who have the time, the money, the education and the fortitude to engage with the court process," says Dame Silvia.
But that was a fraction of those who came to watch the trials. Crowds would attend the court, in a large lecture theatre in Phnom Penh. In some areas, people would rise in the night to catch 2am buses. "You would almost always start the day with 500 people in the courtroom. There was huge and increasing interest." Of the four people charged in Case 002, two were convicted, one died and the other fell victim to Alzheimer's.
Dame Silvia Cartwright as a war crimes tribunal judge in Cambodia. Photo / Supplied
Evidence of the Khmer Rouge rule was presented in court, but it was also all around. Dame Silvia talks of a woman she met - whose husband had disappeared and children had been killed during the regime - picking rubbish from tips to sell. "She's got no way of engaging with the court process. Every day is a nightmare. How can she add that to her nightmare?"
Ms Kedgley Laidlaw wrote of having discovered Dame Silvia had befriended a Cambodian tuk-tuk driver whose wife was dying of Aids. She was financially supporting their family because the dying woman was too sick to work.
Dame Silvia says its just like any community you live in. There is a reciprocal obligation among people living closely together. "You can't help but help the people. They are so poor. I am a rich expat getting a nice salary from the UN. There's no way I can just hold on to that money ...
"It's the part of my career that is most significant to me, definitely. I lived and worked the whole story. The people today are very much the product of what happened 40 years ago. They've all lost someone or been impoverished or are the victims of the corrupt society that has grown up since then. You live with these people, and get to know them and see the consequences of three years, eight months and 20 days of absolute tyranny."
At the start, life divided slowly between New Zealand and Cambodia until Southeast Asia consumed the Cartwrights. The end of her time saw a gradual departure, through Geneva and Glasgow, before returning to New Zealand, where she feels global economic pressure has become the prevailing focus for a community which previously had more balanced concerns.
"As a community we are less interested in human rights than we were. Of necessity, we have become very interested in economic survival. The rights issues have taken a second place."
Dame Silvia says discussion is less than she recalls, and there is less interest in promoting equality between those of differing ethnicities or gender. "Even the discussion about children's rights is dominated very much by economic factors - poverty, the suggestion we have a disproportionate degree of poverty amongst our children.
"It's moved away from talking about what these children's rights are - that they are members of the community, where they have equal access to all opportunities, education, sport, music, whatever they need to become well-formed and useful citizens - to one factor: Can they survive? Have they got enough to eat? Have they got enough clothing? Adequate housing?"
The result is New Zealand being seen less as a place with an image of valuing human rights. "I don't think we're seen quite like that so much, although there is this lingering knowledge of us as decent human beings who are above international politics to some degree, but I don't think it's completely true any more."
It's not New Zealand is less caring, she says. "The heart still beats strongly in the community. I just think we have a slicker image - one that's more attuned to the economic world situation, and I'm not saying that's necessarily a bad thing at all. It's just interesting to me coming back that there aren't the discussions about rights issues that there used to be."
It is impossible to ignore the economic realities - or its consequence.
"Obviously we have to survive in order to provide rights to people. The room for discussion has narrowed. To me there is an element of our society that is damped down or missing all together. I think there has been a real struggle to survive economically for a large section of the community and that's the section that - unlike me - lacks the money to have complete freedom as I have had.
"If the people of the communities that are really hurting - [like those in] Auckland living in overcrowded, unhealthy and unsafe conditions - had the time and the money to protest, I'm sure they would."
Appointing a man to senior state roles is the "easy default option" in New Zealand, says Dame Silvia. She deflects descriptions of her career as trailblazing by saying appointments of women must be "symbolic" or many more would have been approached for top jobs.
"How many women have been High Court judges? And this is the only female Chief Justice (Sian Elias, who had a neighbouring office when both were High Court judges). And do you think she is going to be replaced when she retires by another woman? Do you think when I finished as Governor-General I was going to be replaced by a woman?
"Forget it. They've done their symbolic bit. [Appointing a man is] the easy default option."
The judiciary was 28 per cent female in 2012, according to Human Rights Commission figures. New Zealand has had two women as Governor-General - Dame Catherine Tizard, the 16th to hold the office, was the first. Dame Silvia said if it was not symbolism, it must mean "there are not enough qualified women . . . There are plenty of women qualified to be judges."
On appointment to the High Court, Dame Silvia laughs recalling a NZ Herald headline along the lines of "equality comes to the high court", and the suggestion her presence had apparently single-handedly balanced the scales. "I felt really proud of that. One of me and 30 odd of them."
She said New Zealand seemed to have suffered a dampening of voices challenging the status quo. "For many years now, whatever government, they have not allowed a really independent inquiry - free-ranging - and given the resources to do it."
