Deborah Coddington: Democracy depends on independent judiciary

Since primary school civics lessons I have respected the separation of powers in our democratic constitution - legislative, executive and judicial.

In 2002, as a newly sworn politician, I listened, enthralled, as constitutional law expert Matthew Palmer taught rookie MPs the importance of the limits on these powers, including unwritten conventions - such as not criticising members of the judiciary or their judgments - assured the judiciary would not then stray into discussing public policy.

Palmer dredged up long-forgotten memories of those civics lessons, when a little girl decided to join the fourth estate, the "nit-pickers" as my teacher called media, who remained outside to keep the others honest.

But sometimes as a columnist you take a stand so at odds with others you begin to doubt yourself.

Three weeks ago I dared to criticise our Chief Justice for straying into Government policy when she delivered the annual Shirley Smith lecture.

Abroad for five weeks and unable to read all domestic opinion, nonetheless it seems I'd been dismissed as one of the nutters.

I have no tertiary qualification - who am I to dare to be so bold? Greater minds than mine support Dame Sian Elias - Garth George, John Minto, John Marshall QC, Andrew Geddis - all declared her speech contains ideas that must be debated.

I have no quarrel with that. But the Chief Justice should not be promoting government policy. I believe Shirley Smith, who was a close friend and attended my maiden speech in Parliament, would support my plea for an independent judiciary.

Her father, the late Hon Justice Sir David Smith, would have been horrified to see a Chief Justice cross the line separating the judiciary from the other two powers.

I lose sleep over these things, but maybe I'm just a fossil; the separation of powers is a quaint nicety we no longer heed, and judicial independence has yielded to judicial activism.

I'd been thinking I should build a bridge and get over it, as kids say.

Until last week when I had the privilege of sitting in Chicago's beautiful Symphony Theatre (an architectural gem in that city renowned for its splendid buildings) and listening to an eloquent address by keynote speaker, retired Supreme Court Justice David Souter - Oxford- and Harvard-educated, owns neither cellphone nor television and fixes his own roof - as he addressed the American Bar Association annual meeting.

His topic? A plea to restore the teaching of civics in schools because two-thirds of Americans cannot name all three branches of government.

He warned that this ignorance is a threat to judicial independence, and "this is something to worry about".

Why? Because democratic freedom depends on it. It is no use sticking up for judges if people don't understand the limitations of government.

Souter quoted Benjamin Franklin who, when asked in 1787 what kind of government would be created, answered, "a republic, of course, if we can keep it".

Franklin knew how easily democracy could be lost if the separation of powers is destroyed.

Earlier that day I attended the ABA Rule of Law awards presented to the Zimbabwe Lawyers for Human Rights who, by merely accepting the award, put their lives at risk. Last year I saw lawyers and judges of Pakistan honoured. Those two countries are graphic examples (NB: Mr Minto) of what happens when judiciaries lose their independence.

In New Zealand we take judicial independence for granted and we do this at our peril. The Chief Justice's speech was a nudge in a dangerous direction.

I know not when we abandoned teaching civics in our schools, but obviously we need to restore these lessons.

How many of our children can articulate the three branches of government or understand why judges must be independent of politicians?

As Justice Souter concluded his speech, he pulled the applauding audience to its feet, some in tears, reminded why the separation of powers is so crucial - not for politicians, not for lawyers, not for judges, but for the people.

How? With an utterance from the late Justice Richard S. Arnold which he described as the most eloquent and perfect statement of the need for an independent judiciary: "There has to be a safe place, and we have to be it."

As I joined the standing ovation I wished our Chief Justice was there.