Tapu Misa: A great Judiciary ... if it does what it's supposed to do

COMMENT

It doesn't seem so long ago that the Government was telling us how much better off we'd be without the Privy Council. We'd grown up now, it said. We didn't need some distant court to tell us how to interpret our laws. We had judicial talent and skill to foot it with the best in the world.

I had my doubts, admittedly, especially because of the way past courts had handled Maori land cases and the Samoan citizenship case.

But I found the idea of our having matured as a nation rather persuasive. Whatever the difficulties, it did seem it was time to move on.

So it seems strange that, barely a year later, the Government seems to have changed its mind about our Judiciary. Either that or it has a unique way of inspiring public confidence in the abilities of our judicial officers.

It's not only that the Prime Minister felt moved to criticise the ruling of a Maori Land Court judge, whom she accused of tribal bias.

Or that the Deputy Prime Minister has been making pointed remarks about judicial activism - judges taking it upon themselves to make law rather than merely interpret it.

Or that the Attorney-General has been reported as referring to the Chief Justice as a "shop steward".

That the Government has now taken that trenchant criticism a step further by taking the unusual step of referring Judge Caren Wickliffe's decision to the High Court for judicial review is a little worrying for those who, after the Supreme Court Act, have nowhere else to go.

If it was trying to inspire confidence, I'm afraid it has failed.

I'm tempted to observe that I would have thought the Government had better things to do with its time, but perhaps I'm missing an essential principle here. One that clearly overrides another essential principle, the independence of the Judiciary, and the convention - not much respected these days - that politicians should not publicly criticise judicial decisions.

As the Cabinet Manual unambiguously states: "Ministers should not express any views that ... could be regarded as reflecting adversely on the impartiality, personal views or ability of any judge."

That went out the window in March when Judge Wickliffe ruled that a claim by East Coast foreshore and seabed claimants could proceed to the Maori Land Court, rejecting the Crown's claim for a stay of proceedings.

Having dealt with the procedural matter, Judge Wickliffe, being of Ngati Porou descent like the claimants, then withdrew from hearing the substantive case.

Retired Maori Land Court judge Ken Hingston says this is exactly what he would have done. "She didn't decide anything of moment," he told Mana News.

Despite the Prime Minister's criticism, Judge Wickliffe was, said most legal commentators, quite properly ruling according to the law as it was, not what it might become.

But as Hingston says, the latest move is political. It will delay the East Coast claim until after the foreshore and seabed legislation is passed. Still, it's not a good look for a Government already seen as being sensitive over the issue.

Hingston says that attacks on the Judiciary have become par for the course since the Court of Appeal's ruling in June last year that allowed eight Marlborough iwi to have their cases heard by the Maori Land Court.

It was a politically inconvenient decision for the Government. But judicial activism? Hardly. Despite the accusation of bias against Sian Elias from Act's Stephen Franks, few dispute the decision in law.

As Auckland University emeritus professor of law Jock Brookfield has suggested, if the Government was genuinely surprised by the ruling, he really was amazed.

That hasn't stopped politicians from spreading the idea that the Judiciary is rampant with activist judges intent on wresting sovereignty from Parliament. "Whenever judicial officers stray towards making the law," Michael Cullen has asserted, "we run into trouble ... They are unelected officials and have no democratic mandate."

A former Human Rights Commissioner and Auckland lawyer, Chris Lawrence, says the tussle illustrates the need for our particular brand of parliamentary sovereignty to have some constitutional constraints.

As he says, New Zealand has probably the most powerful legislature of any Western democracy, unfettered as it is by a written constitution or an Upper House.

And while it's easy to see why the vast majority of our MPs see no problem with this system, Lawrence says the danger of our absolutist model of parliamentary sovereignty is that Parliament can push through laws fairly much as it chooses.

This applied particularly to laws which tend to trample on the rights of minority groups "because there isn't a lot of electoral damage in doing so".

The Western Samoan citizenship legislation of 1982 was an example of this, says Lawrence, as is the Foreshore and Seabed Bill, which was acknowledged by the Government as being discriminatory - but justifiably so.

When that happens, groups such as Maori have no real constitutional protection and no option but to appeal to international bodies for a little moral support, as the Taranaki Maori Trust Board has done.

The trust is looking to the United Nations committee for the elimination of discrimination for a declaration that the foreshore and seabed legislation flouts international human rights conventions which New Zealand has signed.

It will amount to not much more than moral support.

As for judicial activism, Lawrence isn't so sure that it is always necessarily a bad thing. One particularly famous activist judge was English Chief Justice Mansfield whose 18th century ruling against slavery preceded its eventual abolition in England by 35 years.

That is not to say that our Judiciary is arguing for judicial activism. Quite the opposite. Judges, writes Chief Justice Dame Sian Elias, are acutely conscious that they lack the tools as well as the legitimacy to legislate, and are properly respectful of the role of Parliament.

Unfortunately, Parliament doesn't always return the favour.