Dr Richard Cornes: Keep law free from power and politics

High Court judges have power to ensure that the Government acts according to the laws, tested in 1976 when a Chief Justice ruled against Sir Robert Muldoon. Photo / AP

Review of Judicature Act should make provisions to protect independent judiciary.

Parliament's Justice and Electoral Select Committee is considering the first major rewrite of the law relating to the judiciary in over 100 years. The act currently in their sights - the Judicature Act 1908 - is itself mostly a consolidation of provisions which date from the 1880s. The Judicature Modernisation Bill will revise and, in places, reform the law under which the courts operate.

This is a reform of constitutional significance. At the heart of the judicial branch in New Zealand is the High Court. It is our "constitutional court". The jurisdiction it has had since opening for business in February 1842 can be traced back to the inherent jurisdiction of what is now the High Court in England & Wales. And that is a jurisdiction which includes the power of a High Court judge to ensure that the government acts according to the law passed by Parliament, and not at the whim of ministers.

The constitutional importance of the High Court was seen in the case of Fitzgerald v Muldoon in 1976 when Chief Justice Wild looked to the 1689 Bill of Rights to tell newly elected Prime Minister Robert Muldoon that he could not suspend the law. Only Parliament can do that, and an independent judge - acting as democracy's umpire - was needed to tell the Prime Minister so.

Sir Robert was not a man many people stood up to, but that's what the Chief Justice did. He could do so secure in the knowledge that displeasing the famously assertive premier would not lose him his job because as a judge he enjoyed security of tenure - something essential to the maintenance of an independent judiciary. He couldn't be fired for simply making the Prime Minister obey the rules, no matter how much it might have annoyed Sir Robert .

Judicial independence does not exist for the comfort of the judges; it is there for all of us. Whether it allows courts to ensure the Government follows the law, or to see that we get a fair trial or hearing if we find ourselves before the courts. In criminal cases we can be sure in New Zealand that we will be tried fairly, according to law, with an umpire - the judge - whose loyalty is to the law, not to press coverage of the trial, or any other cause.

Many people around the world - think of Russia, North Korea, or China - can expect that power and politics will determine their fate before a court, not the law. An independent judiciary should be regarded as a treasured aspect of our national heritage worth protecting.

This moment, as Parliament considers the Judicature Modernisation Bill, is an ideal time to think about whether we can better protect judicial independence in New Zealand. At the moment the continued existence of an independent judicial branch is not even protected to the same level as the requirement to hold general elections every three years - the other pillar of our democracy. Proposals to change the term of Parliament, or to how we vote, require either a 75 per cent majority or a referendum vote.

Academic lawyers enjoy all sorts of debates about whether these requirements are "entrenched". What we can say though is that since the 75 per cent vote or referenda requirements were first introduced in 1956 their moral force has been acknowledged and respected. The provisions act as signposts to put Parliament on notice that when acting in such areas it is walking on constitutional terrain.

By contrast, the continued existence of independent courts rests on the views of a simple majority of MPs. Now, while a full-on legislative assault on judicial independence is highly unlikely, what is possible is incremental well-meaning reform over time which inadvertently corrodes the principle. Similarly, the special protections Parliament introduced in the late 1950s to protect regular fair elections were not introduced because there was a real fear of dictatorship, but because Parliament thought that the legislative provisions needed to be somehow marked off in the statute book as special. It wanted warning lights to go off if future legislators wanted to amend or repeal them.

It was right then, and we should follow its example now. Parliament should take the opportunity of the Judicature Modernisation Bill to give the courts the same level of constitutional protection it itself enjoys. It could do that by simply including in the bill a guarantee that judicial power in New Zealand may only be exercised by independent and impartial judges, and a requirement that ministers and officials uphold judicial independence. And those guarantees, along with existing core provisions relating to the judiciary and its role should be put beyond a simple majority vote.

Doing so would also bring New Zealand into line with other comparable democracies, including our nearest neighbour across the Tasman. The Judicature Modernisation Bill will bring significant and beneficial reform; it is also an ideal opportunity to state clearly our national commitment to an independent judiciary as an essential element of democracy in New Zealand.

Dr Richard Cornes is a New Zealand trained lawyer at essex Law School in England. His submission on the Judicature Modernisation Bill is available at: http://bit.ly/NmYoOk