Fran O'Sullivan: Politicians are weighing in on the scales of justice

Welcome to round two of Judges versus the Executive as Chief Justice Sian Elias issues a damning indictment on the vengeful nature of successive governmental sentencing policies.

Elias has done the body politic - and New Zealand - a favour by putting on record her deep disquiet over what she calls the "repersonalisation of the criminal justice system".

She obviously feels that making victims the centre of attention in court trials has damaged the rights of the accused to a fair trial and a fair and rational sentence where guilt is proven.

Elias reckons the "detachment and public ownership of the accusatorial system of determined criminal culpability freed victims and their kind from the tyranny of private vengeance.

Justice Minister Simon Power has been quick to give Elias a 'butt out of politics' message.

At a time when Power is planning to substantially boost prison bed numbers by using containers to house prisoners her sally can not have come at a more politically inconvenient time.

But Elias is nothing but consistent. The chief justice had a prior crack at the issue in 2005 when she spoke out against proposals for harsher punishment saying long prison sentences might not make communities safer.

National's then Justice spokesman former MP Richard Worth said the issues around sentencing would be at the very core of debate in that year's election questioning her independence and whether she was politically biased towards Labour.

But the facts she has since mustered to buttress her charge that the current system is not working cannot easily be swept under the carpet.

They include a prison muster which almost doubled between 1985 and 1999 and a 50 per cent reimprisonment rate within five years. Projections forecast a prison muster of about 8400 will increase by 37 per cent to reach 10,795 within eight years. And imprisonment rates which see 200 Kiwis per 100,000 population in gaol - second only to the United States.

Elias has the honesty to note that the US incarceration rate is four times that of New Zealand's. But she points out the "calamitous" rate for Maori prisoners - which make up more than half those in NZ gaols - is very close to that of the US.

The Sensible Sentencing Trust - which promotes itself under the absurd banner of "sensible sentencing for a crime safe New Zealand" has been quick to push the panic button over Elias' comments.

Trust spokesman Garth McVicar says introducing executive amnesties - an idea floated by Elias to get prison numbers down - would dilute the deterrent effect of prisons and was "unfair to the victims of crime".

McVicar is probably too self-absorbed to work out that his comment neatly proves Elias' central point. The trust's website is a piece of work mis-quoting Victor Hugo - "there is one thing stronger than all the armies in the world and that is an idea whose time has come".

The trust's approach is obvious. It uses a 'name and shame' approach to castigate judges it thinks are not locking criminals away for long enough.

This group claims to be filled with motivated people with a passion to create a "patriotic crimes free New Zealand" through promotion of personal responsibilities and a better deal for victims of crime.

Its slogan is "harsher penalties are not the answer but sensible sentencing is" - but it is not prepared to engage as to whether sensible sentencing might also entail letting prisoners out earlier, home sentencing or other avenues.

Elias got herself offside with former Prime Minister Helen Clark when she criticised the then PM for showing a "lack of understanding about judicial independence", earning herself a broadside in return that judges should "stick to the bench".

At issue then was Elias' questioning of the extent of Parliamentary sovereignty and her suggestion that there should be a stronger role for the judiciary in the country's constitution. She was demonised as a "judicial activist" by deputy PM Michael Cullen and a "shop steward" by the then Attorney-General for questioning plans for the new Supreme Court building.

But the real seeds of discontent between the Clark government and Elias originated with the Court of Appeal's seabed and foreshore decision in May 2003.

Elias presided over the Court of Appeal hearing. The upshot was that the Crown could no longer assume it enjoyed ownership. Iwi living next to the foreshore and seabed, who had continuously exercised customary rights since British settlement, might be able to establish a freehold claim.

Government politicians did not demonise the Chief Justice immediately. But, as I wrote then, "there were suspicions, fuelled by legal gossip, that Elias - who wore a Maori feather cloak as well as traditional court robes to her swearing-in - swung the other four more "orthodox" Court of Appeal judges to ensure a unanimous judgment".

Elias cannot be accused of a lack of transparency in her current salvo. Her points are well made. Expanding prison accommodation for a projected 37 per cent increase in numbers is not what "justice" is about.

On past performance most of the increased number of prisoners will be Maori and 50 per cent of the increased numbers who are sent to goal will be back within five years.

Surely it is time we asked as a nation why we are taking this approach instead of looking at the root causes of crime.