Court of final appeal out of reach for most

By FRANK MULLER*

So far, the debate on the Supreme Court Bill, and the proposed abolition of the right of appeal to the Privy Council, has been confined largely to the legal profession, academia and representatives of big business. So what is the ordinary New Zealand layman to make of it?

As someone who places great store in our national sovereignty, our unique sense of New Zealandness, and the need for us to learn to stand on our own feet, I believe it is high time for us to dispense with this colonial vestige.

When one strips away all the hype about access to the best legal brains available in a system based, as ours is, on common law, and the assured independence of the Privy Council, one is left with the disturbing reality, as stressed by the retired Court of Appeal judge Mr Justice Thomas, QC, that this right of appeal is exercised in fewer than 10 cases a year - that is, about 2 to 3 per cent of the cases resolved by the Court of Appeal.

Given human nature, one might have expected a much higher rate of dissatisfaction with judgments. So who benefits from the current system and why?

Successful litigants are almost invariably large corporations, wealthier individuals and the Government itself (occasionally a successful litigant, but otherwise a beneficiary through savings on court costs).

Small businesses and ordinary individuals are, in effect, deprived of access to this fundamental second-tier right of appeal, mainly because of the costs involved and the time taken to pursue a case.

Of what value is this much-vaunted access to the finest legal brains and the undoubted independence of the Privy Council if this privilege is effectively denied to the small litigant?

The important question of the quality of the judicial expertise available from our population of four million, compared with that available from a British population of 60 million, is worth a closer look.

Ireland, with a common law background and a similar population, appears to manage well on its own.

And I have no doubt that other somewhat comparable small nations, albeit not with a common law background, such as Denmark, Norway, Finland, Israel, Slovakia, Croatia, and the Baltic states, are sufficiently mature and confident to rely on their own legal expertise.

So what is so special and fragile about New Zealand? Have we heretofore been served significantly better under the rule of law than these other small nations? I doubt it.

Then again, I gather that the former British colonies in the Caribbean region, one of the last bastions of Privy Council adherents outside Britain itself, are considering moving to a regional final court.

As a straightforward matter of fairness to the population as a whole and as a clear sign of our having matured as a sovereign nation, we need to abolish this anachronistic reliance on a distinctive British institution and replace it with an indigenous judicial structure.

Having said that, however, I must admit to concerns about the nature of this structure. Opponents of abolition have stressed the danger of political interference affecting the essential independence of an indigenous Supreme Court. This is something for us to be ever vigilant about and to guard against to the best of our ability.

In this regard, I agree with the suggestion by Mr Justice Thomas that the proposed five-member body should be headed by the Chief Justice, with selected appointees from the existing Court of Appeal, plus one or two appointments from outside the judiciary.

Cases should be heard by leave of the Supreme Court (a commonplace practice elsewhere), which might handle up to 100 cases a year. This situation should help ensure a somewhat different judicial culture from that of the Court of Appeal, which handles around 550 cases a year.

I strongly agree with Mr Justice Thomas that legal intelligence (and I would add wisdom) ought to be the main quality sought in appointees. In other words, the aim should be to find the finest legal minds available.

That being so, I see danger in reserving any position specifically for a Maori appointee, disguised in the proposed legislation as someone versed in tikanga Maori.

I would expect that at least some of the appointees would be sufficiently knowledgeable in such cultural areas.

Once we accept the principle of reserved positions, pressure could arise in time for further reservations. If specialised knowledge of Maoridom is required for a particular case, the Supreme Court could be given the power to co-opt.

I note that some proponents of the present system defend our reliance on a distant British institution by instancing our preparedness to subject ourselves and our national sovereignty to bodies such as the World Trade Organisation and the International Court of Justice.

No valid comparison can be made because in such cases we are dealing not with domestic cases but rather international problem areas.

Finally, as the whole issue is a constitutional one, involving a significant change from a long-standing practice which has served us reasonably well during our national infancy and adolescence, and as we really have no clear idea about the views of the great majority of New Zealanders, there could well be a case for a national referendum to test public opinion, rather than leaving the issue to be decided by a simple or a stipulated majority in Parliament.

* Aucklander Frank Muller is a retired diplomat.