The process by which Judge Brett Kavanaugh was elected to the US Supreme Court was a travesty of decency – and a troublesome display of ‘street’ justice. The Democrats had sought to destroy his reputation to delay the appointment and keep the vacant seat open until they were in a position to control the selection.
And they very nearly succeeded.
As a result of the influence of the #MeToo movement, it appears that all it takes these days is a mere accusation by a woman against a man for there to be an assumption of guilt. The presumption of innocence has been overturned by mob rule.
While politicians are also responsible for the appointment of judges in New Zealand, the selection process largely avoids controversy. The main reason, of course, is the nature of our constitution and the different role of the judiciary.
Since the US has a written constitution, Supreme Court Judges have the power to not only interpret the law, but to make the law. They can declare laws invalid if they conflict with their interpretation of the constitution. And while that eighteenth century document does not refer to many of today’s challenging political and moral issues, judges nonetheless are at liberty to write new laws providing they refer to the words of the constitution or its ever-evolving ‘intention’.
That’s why the membership of the US Supreme Court is so important. Those judges, who are appointed for life, are able to act as politicians, without the constraint of having to seek a public mandate.
In comparison, New Zealand has an unwritten constitution, which means our Parliament is supreme. Our law-makers are Members of Parliament, who are elected to represent the public interest – and can be sacked at the ballot box if they fail to do so. The role of the judiciary is largely restricted to interpreting the law.
The main responsibility for the choosing judges in New Zealand lies with the Attorney General – with assistance from the Solicitor General, the Chief Justice, the Secretary of Justice, as well as the Principle Judges of the other Courts. Appointments are made by the Governor General.
When it comes to the Chief Justice, however, who presides over the Supreme Court and is required to occasionally stand in for the Governor General as Head of State, it is the Prime Minister who traditionally makes the choice from recommendations provided by the Attorney General.
The six-member Supreme Court was established by Helen Clark’s Labour Government in 2004 after abolishing access to the Privy Council in London. The next court in the hierarchy is the ten-member Court of Appeal, followed by the country’s 19 High Courts, and 58 District Courts. In addition, there are a range of specialist courts – including the Family Court, Youth Court, Employment Court, Environment Court, the Maori Land Court, and the Maori Appellate Court – along with a multitude of tribunals, including the Waitangi Tribunal.
The current Chief Justice, Dame Sian Elias, is due to retire next March on her 70th birthday, which is the compulsory retirement age for New Zealand judges. When she was first appointed in 1999 by former Prime Minister Jenny Shipley, she only expected to stay in the role for 10 years.
During her time in the top job she has been a highly controversial figure. There have been numerous calls for her resignation – mostly relating to her challenge to the separation of powers between Parliament and the judiciary, and to her radical activism over Maori rights.
According to Crown Law’s Judicial Protocol guide, “The separation of powers between the legislature, executive, and judiciary is a fundamental principle of democratic governments such as that of New Zealand. Each branch of government has a role in balancing the power of the other two branches. For instance, the judiciary examines the actions of the executive through the process of judicial review. Conversely, the executive is principally involved in the selection of Judges, and both the executive and Parliament would be involved in the dismissal of Judges in the event of misconduct.”
In his article “Interventionist Judges”, this week’s NZCPR Guest Commentator, retired Judge and University Law Lecturer Anthony Willy, explains that when judges swear their oath of office to do right according to the laws and usages of New Zealand, they commit to upholding the separation of powers:
“The requirement to do ‘right’ as distinct from ‘wrong’ is tightly circumscribed by the requirement that it be within the ‘laws of usages of New Zealand’. It is these few words which describe and limit the role of a Judge, and which absolutely prohibits a Judge from deciding cases according to his or her own views or conscience, or from encroaching on the role of Parliament as the supreme law making body.
“Crucially a Judge must leave his or her own opinions on the issues of the day at the court door and should never while a sitting Judge air them publicly.”
Ill-advised comments by senior judges can have a profound and long-lasting impact. We saw this in the 1987 Lands Case between the New Zealand Maori Council – represented by Sian Elias – and the Attorney-General over section 9 of the State Owned Enterprises Act, when the President of the Court of Appeal, Sir Robin Cooke, used the word ‘partnership’, saying the Treaty signified a partnership between races.
Since it is constitutionally impossible for the sovereign Crown to enter into a partnership with any of its subjects, the Judge’s use of the word clearly meant the Crown and Maori owed each other duties akin to those of partners in any commercial transaction. Nevertheless treaty activists seized on the Judge’s words to claim that since the Court had ruled that Maori were partners with the Crown, they were entitled to all manner of race-based privileges and co-governance rights at central and local government level.
While the Chief Justice does not believe the ‘partnership’ concept has any legal status, she considers the Treaty is ‘constitutional’ saying, “Constitutional documents are always indeterminate; they have to leave room for societies to grow. They’re all made with aspirations of their day, and they have to expand to fit the different society that evolves…”
But expanding legal interpretations at the discretion of a judge is a radical shift that gives activist judges an opportunity to make rulings based on personal opinion, rather than existing law.
The Chief Justice appears to have frequently ventured into the realm of opinion rather than law.
In the early years of Helen Clark’s Labour Government, she claimed the Prime Minister lacked “understanding about judicial independence”. In response the PM said judges should “stick to the bench” and not get involved in politics. The Deputy PM Michael Cullen called the Chief Justice a “judicial activist”.
And indeed, that’s what her 2003 Court of Appeal decision in favour of Maori rights to the foreshore and seabed exemplified, since it overturned settled law and an earlier Court of Appeal ruling that had affirmed Crown ownership under common law.
In essence, Sian Elias’s judicial activism created a constitutional crisis. By declaring that customary title might still exist in the foreshore and seabed, and that claims should be determined by the Maori Land Court – which had the jurisdiction to privatise customary title – she set the scene for the wholesale privatisation of New Zealand’s coastline.
At the time there were suspicions that the Chief Justice, had ‘swung’ the other four more ‘orthodox’ Court of Appeal Judges to ensure a unanimous judgment.
There was also a view that Sian Elias should have recused herself from the case, given that in the 1980s she had argued in the Waitangi Tribunal for tribal control of the Manukau Harbour and seabed, and was clearly biased in favour of Maori rights to the coastal marine area.
The Court of Appeal’s finding, which triggered such a flood of claims for the whole coastline, that the Government felt forced to legislate, resulted in the passage of the 2004 Foreshore and Seabed Act. This led to the fracturing of the Labour Party and the formation of the Maori Party. It was their influence, that caused National to repeal the 2004 law and replace it with the disastrous Marine and Coastal Area Act, to enable tribal groups to gain ownership and control of the rich natural resources of the coast.
In his Guest Commentary, Anthony Willy explains that one of the key requirements of a judge is that they do not express personal views in public, and he criticises Judge Matthew Palmer for a public lecture he gave in July, where he stated that courts should have more power to protect Maori rights:
“The learned judge proceeds with the theme of his address which is that the existing constitutional arrangements of separation of powers between the judiciary and a sovereign Parliament are no longer serviceable when it comes to the place and interpretation of the Treaty of Waitangi in our jurisprudence. He argues for the balance between the courts and Parliament to be altered in favour of the courts having more power to protect the rights of indigenous people…”
He goes on to say, “The topic of indigenous rights and the Treaty of Waitangi chosen by Justice Palmer in his paper on the one hand, and the sanctity of the rule of law on the other has a particular current significance in New Zealand and has been the subject of much litigation. But of more concern is the fact there are before the High Court in excess of two hundred claims by Maori litigants in which are sought proprietorial interests in the foreshore and coastal waters denied other New Zealanders.
“I cannot recall a more sensitive and divisive social issue and one so fraught with disruption to the existing generally harmonious state of race relations in New Zealand. It will require the most rigorous and impartial application of the relevant legislation to the facts of each individual case without fear or favour, affection or ill will. The respondents to these claims must have complete confidence in the impartiality of the chosen judge, none of which is possible if the judge has publicly declared views which call for a reordering of the constitutional balance in a way that can only be intended to favour indigenous people above all others. In giving this paper the Judge has disqualified himself from dealing with any of these cases thereby imposing an added burden on fellow judges.”
Indeed the High Court’s first ‘priority’ claim under the Marine and Coastal Area Act – see CIV-2011-485-789 HERE – is now underway. It is for an area of coastline in the southern Hawke’s Bay near Porangahau.
The applicants, Kaylene Clarkson and her whanau, are claiming that they have used the area from Whangaehu to Poroporo and including Cape Turnagain exclusively and continuously from 1840 to the present day.
Since the Attorney-General has recently advised that he does not consider it is his role “to oppose applications in the public interest”, and with 200 over-lapping claims covering the entire coastline, it appears that it is going to be up to us – the public – to refute the claims.
Accordingly, we would urgently like to hear from anyone who believes the Clarkson claimants have not used that area of the Hawke’s Bay coastline “exclusively” since 1840. If you, or your family or friends have lived or visited the area, or know its history and would like to help with our research, please contact us at email@example.com
This is very important. Remember that these claims are coming to your beaches too, and since the outcome of this first claim could set a precedent for the rest, if you have any information at all that could be useful in helping to show that the applicants cannot have used the area exclusively since 1840, please don’t hesitate to get in touch.
And as we battle to defend our beaches in the months and years ahead, we should never forget that we are in this mess, not only as a result of judicial activism, but also because of irresponsible law-making by MPs as well.