Gavin Ellis: Judicial proposal falls down on selection process

COMMENT

Ms Margaret Wilson,

Attorney-General,

PARLIAMENT BUILDINGS

Dear Ms Wilson:

Few could take issue with your belief in a final court of appeal available to all, rather than to "privileged few".

Some would agree with you that an end to Privy Council appeals is an idea whose time has come.

Were that the only issue your bill would have enjoyed, one might believe, a greater level of support than the thin majority it attracted.

Doubtless, United Future would have remained with the supporters' fold.

However, your open letter to me assiduously avoids the real issue at the core of the Herald's opposition to the passage of the Supreme Court Bill through the House.

The Privy Council is not the only issue and, indeed, not the substantive one. One wonders whether an emphasis on the London-based court conveniently obscures the source of real disquiet.

That unease lies within the structure with which you intend to replace the Privy Council as our final court of appeal. The Supreme Court will be built on foundations that are at best shaky and at worst without moral mandate.

Deaf to many of the recommendations in public submissions, born out of a meagre parliamentary majority and populated by judges appointed by you on recommendations from a panel of this Government's making, it will be seen for what it is - a Labour-appointed Supreme Court.

If New Zealand is to replace the Privy Council - and you make some valid points in favour of the abolition of that avenue of appeal - then let it have a court imbued with the standing it deserves.

You state that "New Zealand should be proud of its tradition of respect for judicial independence and our culture of non-partisan appointments". Indeed we should.

However, as Lord Justice Hewart stated in respect of justice itself, this independence should "manifestly and undoubtedly be seen to be done".

That can now happen only if you and the Government have a fundamental change of thinking on the processes through which judges will be appointed to the Supreme Court. These appointments are too important for your Government - indeed, any government - to hold sway over them.

The confidence that the country must have in the Supreme Court needs to be built on a foundation of independence. That will not develop while there is any possibility of influence by partisan politics with which at least half the country disagrees.

No process can carry the mantle of true independence if it has been devised on one side of the House. No selection panel can be seen to be apolitical when it has been chosen by the party in power. No superior court will be free of criticism while its members owe their appointment to the Executive and not Parliament.

Were you to engage Opposition parties on a process that required broad cross-party support for the appointment to that court of any judge, you could achieve several worthwhile goals.

You would remove the real possibility that the court will be perceived as "politicised". You would place the Opposition in a position where it would have to act in the interests of the nation rather than its own points tables. And you would remove some of the public distaste over the disdain with which your Government has regarded the real constitutional significance of this legislation.

Of course, nothing will overcome the reality that this court lacks the 75 per cent parliamentary approval that should grace enactments of such intrinsic force. That is a fact with which I suspect we will have to learn to live. There seems a remarkable reticence about raising the required majority on any legislation other than those statutes by which members of Parliament have themselves elected.

It is time to deal with realities. Like you, I see little likelihood of a return to the Privy Council. The Supreme Court will be a reality. We may have to settle for making the best of a bad thing but I hope that will not be the case.

Your Government has the time and the capacity to fix the serious deficiencies that, if unremedied, will dog this court.

I urge you and your colleagues to set about that task now. It may be your last chance to be the architects of a supreme court worthy of the name.

Yours sincerely,

Gavin Ellis,

Editor-in-chief