Editorial: Confidence in court a supreme test

The five judges chosen to comprise the new Supreme Court make an impressive line-up. Chief Justice Dame Sian Elias and Justices Thomas Gault, Sir Kenneth Keith, Peter Blanchard and Andrew Tipping are, by all accounts, the most senior judges of the Court of Appeal, and all five were appointed to that court when National was in power. Thus the Government allays the fear that it was about to replace the Privy Council with an indigenous court stacked with political or philosophical soulmates.

Many will notice that the appointees are the same five judges of the Appeal Court who made the decision in June that would, if the Government allows it to stand, open the way for Maori customary ownership of the foreshore and seabed. While undeniably that was a decision of highly "activist" judges - overturning 40 years of case law - it was not as conclusive as it might have seemed. It merely allowed the Maori Land Court to hear claims of customary ownership.

The five judges did not offer a view on the merits of the particular claim in the case before them and one or two expressed serious doubts that any claim would clear the likely legal hurdles. A close reading might allay concerns that the Supreme Court will consist entirely of like-minded liberals with a mission to push the frontiers of indigenous rights and social justice.

It is particularly vital that the first bench of the country's highest judicial body be conspicuously non-partisan. Never again are all five appointments likely to be made at once. As the judges retire, future governments might fill no more than two or three vacancies in a normal parliamentary term. But on a bench of five, of course, even two or three appointees could swing the balance of views and change the character of the court. The risk of political preferment remains unless the Government amends the legislation recently passed in defiance of demands for a referendum. It must do so before the first retirement from the Supreme Court.

While the first appointments avoid the risk of overt political selection, they also beg the question: why persist with the system set up in the legislation? There seems little point introducing a new selection panel if the highest-ranking jurists are simply to take a step up as they have done this time. If the legislation remains unchanged, it means this first exercise is not intended to set the pattern. Future appointments, in other words, could easily be based on considerations other than seniority.

And so they should be. A judicial escalator is not the ideal alternative to political appointments. Years of service on a lower court are not necessarily a sound basis for promotion. The country needs the best legal minds it can find for its highest court and it needs them more than previously when the Privy Council stood as a final check on judicial reasoning.

However, selection should be through a standing commission appointed partly by the Law Society, partly by Parliament and partly from the judiciary. A commission of that kind would seem capable of coming up with the best candidate to fill a vacancy on the court and its decision should be final. Its responsibilities could include appointing other judges and senior counsel, positions that should not be the prerogative of an attorney-general.

There is now even more reason to keep the Government at greater arm's length from judicial appointments. A country's highest court exercises considerable legislative power. Its interpretations of statutes and the cases it decides can be as important as the words Parliament puts into law.

There will always be tension between a popularly elected body and an appointed court that exercises such power. But if the public has confidence in the court's method of appointment it could provide a valuable counterweight to the Government. The best way to have begun to build public confidence would have been with a Supreme Court with a broad political mandate and, perhaps, the approval of a referendum. That opportunity has gone. It is up to the five named judges now to start building confidence in the court and see that the wisdom of the Privy Council will not be missed.