Criticising The Judge, Or Government?
ACT New Zealand Justice Spokesman Stephen Franks said today he understood the Bar Association, and other lawyers',
concern about his statement that the Chief Justice should not have sat on the Court of Appeal for the seabed and
foreshore case.
"I respect the reasons for the convention that Parliamentarians do not criticise judges, though they may criticise
decisions and conduct of cases. I am standing up for more vital principles - that have Courts applying the law
impartially, not making it," Mr Franks said.
"As the Bar Association says, Labour could have raised the apparent bias matter with the Court, but did not - I fear
they were insensitive to it. They think everyone should see Treaty issues as they - and, perhaps, the Chief Justice -
do. But Labour never considered the consequences of separatist policies, and were unprepared for the court's decision -
though it was the natural product of their policies.
"Dame Elias was not underhanded. She has never hidden her convictions, and appears to have applied them. I blame Ms
Wilson, who had the case's conduct, not the Chief Justice.
"My questions in Parliament asked why the Crown was fighting the case without trying to win. Ms Wilson and the Prime
Minister are trashing our constitution - by giving courts the dirty political jobs they don't want to be seen doing -
hoping the deep tradition of respect for the courts and the Parliamentary convention will stop anyone holding them to
task.
"I agonised over this. Dame Elias is a good judge, whom I respect. But she should not have been on this case, where
judges overturned a 40 year-old decision widely relied on, including by Parliament in drafting other laws. Why hasn't
Labour tried to appeal such a result, which they admitted was completely unexpected?
"The courts' primary duty is to make predictable decisions in accordance with principles known in advance. Judges, led
by the Chief Justice, have been encouraged to think they are entitled instead to produce law the way they would prefer
it to be. This usurps the supremacy of Parliament, where elected members must face voters for laws they make.
"This warps our constitution. I don't want to see our courts become political tribunals, or judges in the line of fire.
But I won't be snookered by a Government that sets the courts up to perform political roles, to make law they couldn't
get through without political damage.
"The Attorney-General's admission today - that Labour hadn't even considered challenging the seabed and foreshore
decision on the grounds of the Chief Justice's open campaigning for Maori ownership of seabed before her appointment -
shows how insincere Ms Wilson and the Prime Minister were when they said they would reverse the decision.
"I will not accept Labour's criticism. These conventions, including the convention that the judges apply the law
instead of making it, belong to us all. The convention that major constitutional change requires a broad consensus is
being trashed by the Attorney-General's ramming through of the Supreme Court Bill. We would all feel ownership of a new
court if it was approved by a referendum, and directed the judges to leave politics to the politicians. "Constitutions
belong to us all, not to a particular party in power at the time. If they want to abuse the conventions that protect the
courts from political interference by dumping our top court and appointing a new one with a bare Parliamentary majority,
they cannot prevent us asking why they don't appeal, just because the request may be seen as criticism of a judge.
"A chummy little political elite has controlled our justice system for 20 years. They have given much of the dirty work
to the judges, who had no means of avoiding it. We have got used to seeing judges in that role. It must end," Mr Franks
said.