Three Things Wrong with Plan for Hiring & Firing Judges
ACT Justice spokesman Stephen Franks said today that Sir Geoffrey's Palmer's scheme for changing Attorney General
Margaret Wilson's process of appointing judges has three serious faults.
"The first is that it does nothing about political bias in appointments. Political neutrality hasn't mattered so much
while we have been able to appeal to neutral international referees, the Privy Council in London. Over the years they
have squelched suspect projects of activist judges in New Zealand.
"Judges unavoidably get political when Governments deliberately write fuzzy, feel-good law. Judges are left to say what
the elected politicians have been too scared or too cunning to say. That's now New Zealand's problem.
"In countries where the top courts are constitutionally lawmakers, the power to appoint judges is one of the most
valuable prizes of political victory. But those countries also have processes such as `confirmation hearings' to limit
one-sided politicisation of the courts.
"The Palmer report will leave Ms Wilson and her Cabinet comrades completely free to drive the appointment process.
There is nothing to stop them only letting through candidates who share their prejudices. Sir Geoffrey did not suggest
even the mildest remedy, for example a requirement to consult with the Leader or Leaders of the Opposition. This is
astonishing.
"Political appointments will become vastly more important under the new style laws Labour is pushing through. They
deliberately use vague terms so the judges can fill the gaps with rules and concepts (like `partnership') that would
never get past Parliament if they were debated. Ms Wilson wants judges who see their job as lawmaking. They'll have to
know and apply concepts of Maori spirituality and tikanga Mäori in a whole raft of new provisions just passed or in the
pipeline.
`The second flaw is the failure to recommend any mechanism for ejecting a judge who the Government wants to protect.
The scheme's new processes might even reduce Parliament's current power to act whether or not the Government wants to
sack a judge.
"The third flaw is just the empty rhetoric about transparency. The scheme formalises processes and appoints officials
but there is no assurance that the true reasons for decisions or non-decisions will be any more accessible. There is no
additional right of access to information.
"The Government had a chance to try to reassure New Zealanders with the plan. The new Supreme Court looks like a
sinister scheme to use judges for political objectives they wouldn't achieve at the ballot box. The report adds to these
concerns about the real agenda instead of allaying them. Politicisation of the judiciary is the problem," Mr Franks
said.