Editorial: Privy Council stance masks the real issue

The time has come for New Zealand to take responsibility for its own judicial system. So runs the Government's defence of its decision to abolish the right of final appeal to the Privy Council. It had every right to expect that such an appeal to patriotism would win a large measure of popular support. Certainly it did in May, when a Herald-DigiPoll survey found relatively strong backing for the Government. No longer is this the case. A new Herald poll, published today, finds that support has shrunk to 36.1 per cent - and 47.9 per cent now want the Privy Council retained. If the Government can still muster a wafer-thin majority in Parliament to pass the Supreme Court Bill, it can no longer claim anything approaching a popular mandate.

Support for a referendum is now as high as 79 per cent, according to the poll. How can the Government deny that desire? Particularly if there is a widespread understanding that this is not about emotion and cutting ties with Mother England. It is about what takes the Privy Council's place.

If, as the Government claims, the scrapping of the Privy Council is not of major constitutional significance, the creation of a Supreme Court most certainly is. The country's highest court would inevitably make and mould law in the process of hearing cases and interpreting legislation. Serious misgivings are inevitable if it is seen to be politically coloured. Its make-up, and the process of appointment, are, therefore, of the utmost importance. Quite simply, the Supreme Court Bill substantiates, rather than suppresses, those misgivings.

The right of appeal to the Privy Council made it futile for Governments to seek to influence the composition of the Court of Appeal. Now there is the potential, if the law allows, to people the Supreme Court with judges who hold views compatible to those of a government. The bill caters to that possibility. It is not good enough to have the Attorney-General appoint judges to the court on the recommendation of a narrow-based panel consisting of the Chief Justice, the Solicitor-General and a legal layman, Sir Paul Reeves. If accusations of politicisation are to be avoided, there must be a more persuasive appointments process.

The Government has two options. It could dictate that appointments to the Supreme Court are made by a broad-based, non-partisan judicial commission. Appointments to this commission would have to be supported by three-quarters of parliamentarians. Alternatively, potential appointees to the Supreme Court bench could be subjected to rigorous all-party examination, and receive the green light only if, again, they have the support of three-quarters of parliamentarians. Judges appointed to a court that stands second only to Parliament demand such scrutiny, and a wide level of support. Only then will the court be seen to be politically neutral.

As it is, a minority Government seems determined to create the Supreme Court with the support of a minor party. The attempt launched yesterday by National, Act and New Zealand First to force a referendum is worthwhile but not to maintain links with the Privy Council. Its purpose must be to put a big spanner in the Supreme Court wheel. A plebiscite on constitutional issues is democracy in action but this issue has not been helped by Opposition politicking and flip-flopping.

This has encouraged the Government to ignore its lack of broad mandate, both inside the House and in the wider community. Yet even its entreaties for New Zealand to stand on its own feet no longer press the desired buttons. New Zealanders have come to recognise the real issue - and to have justified qualms. The Government must recognise this today by placing the Supreme Court Bill down the parliamentary order paper on its return to the House. It is time to park the legal steamroller.