Stephen Franks: Should we sack judges?

Opinion

"Hero Judge" is the label a top Australian judge recently stuck on other judges who would rather change the law than stick to their boring traditional job of applying existing law. Some Labour MPs should be keen to work with me on this, urged on by Michael Cullen, the Attorney General.

In 2004 he woke up to what Margaret Wilson had done in getting rid of appeals to the Privy Council.

She rammed through the Supreme Court Bill in 2003 so that, in her words, the court could "develop an indigenous law for New Zealand".

Until then it was never worth even trying to stack our courts with political cronies. Any political decisions could be appealed to neutral international umpires in London. They tended to cut down the hobbyhorses of local judges.

The seabed and foreshore decision shocked the Government. The Court of Appeal reversed longstanding law to hold that the Crown did not own the beaches.

Under the conventions of our constitution they should not have changed the law as they went if they thought a mistake had been made 40 years ago, they should have upheld existing law, and then urged Parliament to change it.

Cullen has warned of judicial threats to Parliamentary sovereignty. Deciding what to do about the threats is not in the brief of the committee performing the constitutional stocktake, but we can look at how other countries have dealt with such issues.

I'll be weighing up a push for a voters' right to sack hero judges.

Up until a few years ago no thoughtful New Zealander would have contemplated a citizen right of judicial recall. It would have been as foreign as the notion of electing judges.

Few knew that many states that do not directly elect judges, including our Pacific neighbours Japan and California, have such rights.

Almost as few knew that our Parliament already had an unconstrained power to impeach a judge by a simple majority vote on any MP's motion, but had never used it.

Our faith in jobs-for-life for judges was strained by the infamous Beattie case, when Attorney-General Douglas Graham would not initiate Parliamentary impeachment because the judge had not been convicted, even though his excuses alone seemed enough reason to revoke his warrant.

Still, we recognised that job security (unless caught with their hands in the till, or worse) protects our freedoms from improper government pressure on judges.

But another law change last May increased the risk that unelected judicial supremacists could usurp democracy. Attorney-General Margaret Wilson made it harder for Parliament to sack a judge.

Her Judicial Conduct Commission and Judicial Conduct Panel Act gave the Attorney-General the power to block an impeachment even if most of Parliament (and the Conduct Panel) thinks that the judge's removal is justified. This power to protect judges raised suspicions that at least some in the Government want to use like-minded judges to invent the details of law they dare not make clear in Parliament.

For example, Ministers were too cunning to specify race discrimination and privileges in recent local government laws. Instead these laws refer to the spurious "partnership" and the mythical "principles of the Treaty of Waitangi".

Judges will have to try to give meaning to these terms.

A right for citizens to vote on whether a judge stays is an obvious response to judges who want to make law. Political judges should face the politicians' risk of being voted out.

Yet it would be unfair when applied to judges who are reluctantly trying to make sense out of deliberately fuzzy feel-good law.

Most thoughtful commentators reject voting judges in. Democracy leaves them beholden to their supporters. Nor is it good at selecting the best candidates. But democracy is very good at voting out people who have outstayed their welcome.

In a celebrated 1986 case Californian voters removed three out of five Supreme Court judges, including Chief Justice Rose Bird. She was the darling of criminal defence lawyers and the fashionable left but was sacked after persistently frustrating criminal law reforms and overturning every death penalty appeal that came before her, including on some terrible murders.

Californians have been rewarded for their reforms with massive drops in crime rates. Future New Zealanders might need better defences against hero judges implementing their own agenda. I will ensure we consider giving citizens' the right to recall such judges.