Kiwiblog

The media have suddenly found a speech by Chief Justice Elias and are reporting:

The country’s top judge has taken a veiled swipe at the Government’s justice policies, warning that some Cabinet decisions threaten the “fragile” independence of the judiciary.

In a rare public critique, Chief Justice Dame Sian Elias warns that decisions “which seem quite innocent” are undermining the basic principles of the constitution.

In a speech at Waikato University last month, Dame Sian broke with convention, criticising moves by politicians to interfere with the courts in pursuit of cost savings.

The speech was made on 12 September, so has been available for five weeks. The first part of her speech is about constitutional reform, and I tend to agree with the sentiments of the CJ that the reliance on conventions has its risks. On one issue of electoral law the CJ said:

The Electoral Acts stand in a special category because they establish the conditions of democratic government and have long been subject to supermajority requirements for amendment as a result.

I wish that was the case. But in fact only a small number of provisions in the Electoral Act require a super-majority, and in recent times we have seen highly partisan and even retrospective changes to the Electoral Act done on narrow majorities. I would like to see more of the Electoral Act entrenched.

Of course the entrenchment clause itself is not entrenched so Parliament could change even entrenched clauses with a bare majority, but there would be a significant political price to pay for doing that.

The CJ then refers to three risks from the current “obscurity” of the constitution. They are:

1. the rule of law
2. human rights
3. the role of the Treaty

With regard to (1) she quotes Lord Cooke that there are some rights and duties that are “truly fundamental” and are ultimately an inescapable judicial responsibility. This is an ages old argument about what would the courts do if for example Parliament voted to execute all babies with blue eyes. It is an interesting academic argument but not one I deem necessary to stay awake at nights worrying about.

Personally my view is that the reserve powers of the head of state should be the protection we rely on from a non-benign Parliament, but the problem with our current arrangements is the PM can sack the effective head of state at will.

The part that has got people excited is this:

I think there are signs that the courts are isolated and aspects of their independence precarious. Court resources are within the responsibility of executive government. Regulations prescribe the terms on which citizens have access to the courts. Court fees are within executive control. These are matters which should be subject to more public discussion than has been the case, perhaps because they are not popularly seen as touching on the constitutional principle of access to the courts. One of my colleagues has asked in a previous Harkness Henry lecture, not entirely in jest, whether we would regard with similar equanimity the imposition of fees to have access to a member of Parliament or a responsible Minister. Judges and lawyers may get the point. But if the wider community does not, it is no jesting matter at all.

Judges complaining about court fees is nothing new. But unless the Judges wish to self-fund their salaries, then Parliament will set the fees (or delegate to Govt) as it is Parliament that raises the revenue to pay for their operations.

As for the comparison to access for MPs, I think it is apples and oranges. No developed country charges for access to MPs and no developed country I know of has no court fees.

Judicial support staff are Ministry employees. The Registrars of the courts are managers employed by the Ministry although nominally responsible to the judges for their registry functions. The judges have no effective say in the allocation of the budget for courts and have had little influence in the priorities set by the Ministry. It seems to be assumed that the administration of the courts (including the administration of judges) is an executive function and that judicial independence is sufficiently preserved if individual judges are not directed how to decide particular cases.

Here the Chief Justice is acting as head of the Judges’ Union. Most previous CJs have done the same. Wanting their own budget has been a long-standing issue, as is wanting to control their support staff directly. I have some sympathy for their desires but would be interested in how many countries have the judiciary actually managing their own department.

It can be expected, too, that the work of international agencies such as the United Nations Human Rights Committee will provide encouragement towards commonality. It would be bold to suppose that legal cultural differences will not shift under such external influences.

The UN Human Rights Committee/Council is probably the biggest threat to human rights we have. They seek to invent new rights such as for religions to be immune from criticism which would be fatal for free speech.

Perhaps it is time to think again about the recommendation of Lord Lester that we would benefit from a Human Rights Committee of Parliament to keep a close watch on legislation which impacts on fundamental rights and freedoms. Such a Committee might even with advantage take on a wider responsibility to scrutinise measures which impact upon constitutional values.

The CJ says several times that protecting human rights is not the duty of the courts alone. I agree, and think a Human Rights Committee of Parliament could be a good thing.

Norfolk Blogger (a Lib Dem) reacts with understandable anger to the UN Human Rights Council chiding the UK for its failings.

Sir Lanka, a country slammed by Human Rights Groups for its extrajudicial executions thinks the UK should ditch the monarchy as it is anti human rights. Now I am a republican but I don’t think the UK needs to be told buy the UN what form of Government to have.

Syria, a country with one party rule, complains about discrimination against Muslims. Syria only restricts freedom of speech, press, assembly, movement, association and oh yeah religion.

But the highlight must be Iran complaining about the UK’s record on sexual discrimination. Here is how Iran treats women:

• If a woman is killed (say in a car accident) her family is paid only half of what they would get if a male is killed
• The testimony of a male witness is worth twice that of a female witness
• Women can not travel by themselves without written permission of her father or husband
• Women get only half the inheritance amounts men get
• Women who are raped are deemed guilty of extra-marital sex unless there are four Muslim male witnesses to the rape

And Iran sits on the UN Human Rights Council lecturing the UK on its sex discrimination record. It would be funny if it wasn’t so very very sad.

There is a rumour NZ is going to seek a place on the Human Rights Council. I sincerely hope we do not. We should not add legitimacy to this farce.

Mike Moore makes some excellent arguments:

There are some who oppose New Zealand’s trade deal with China, and want a boycott of the Olympics. It’s precisely because China depends on the global trading system that world opinion on human rights now matters to the Chinese.

Thirty million people perished during the cultural revolution and Mao’s great leap backwards. World opinion didn’t matter to the Chinese then. Now it does, and that’s a good thing.

China is going through the same process as Japan, Singapore, and places like Taiwan. As living standards rise, a middle class emerges that seeks out better social outcomes. Wages in the Pearl River delta in China rose 13 per cent last year.

Seven thousand factories will close this year because wages have moved up and these jobs will head inland, or to Vietnam, even Africa. This is the virtue of free markets and globalisation.

For the first time the Chinese Government is answerable to its own laws – you can now sue the Government.

It’s no longer an atheist state; there are the beginnings of freedom of religion. Over 10,000 Chinese Muslims were allowed to go to the Haj in Mecca. Christians sued the Shanghai Government for wrongful arrest when they expressed their religious beliefs. This is an imperfect and uneven progress that should be celebrated.

All this is healthy and Prime Minister Helen Clark has hit the right note. …

The New Zealand /China trade deal is to be welcomed. Would our competitors turn it down? In fact, our advantage will last only a few years, if that, as others sign up.

All this exposes something else about New Zealand’s political process. Our Foreign Minister, Winston Peters, says he’s not a member of Government except when overseas and may not vote for it. How is this possible?

Peter Dunne has said he will vote for the deal but has the Chinese shaking in their boots by saying he won’t go to the reception. The Maori Party has taken different positions, but one MP said we shouldn’t trade with countries that pay lower wages than NZ. That means we can’t trade with Samoa, forcing them to pay more for goods from anywhere else.

At last the adults in the Labour and National Parties have taken control for a short time and done what is right for New Zealand. This deal is worth a few hundred million dollars to New Zealand, small compared to the Uruguay Trade round, and tiny compared to what this country will get from the Doha Trade round.

Why is it so small? Because the terms of China’s accession to the World Trade Organisation collapsed tariffs in agriculture by 90 per cent. Isn’t it a good thing that China is now inside the WTO and answerable to its rules, obligations, and binding legal disputes system? The WTO and the Doha Round is still the biggest global game.

But New Zealand can do a deal with China and advance the WTO. It’s a melancholy fact the best thing I ever did was leave New Zealand to run the World Trade Organisation. China joined the WTO and the Doha Trade round was launched in my time. Modesty prevents me from pointing this out.

Completing the Doha round would be a better achievement, but to be fair to Moore he can’t be held responsible for that not happening!