Dialogue: Appointing former PM as a top judge is just not on

Appointing Sir Geoffrey Palmer as president of the Court of Appeal would be as dangerous as it would be unacceptable, writes JIM ALLAN*.

The Labour Party seems to have adopted the strategy of leaking possibly controversial decisions to the press and then watching for the reaction.

One floats the trial balloon, observes how many people want to shoot it down (and how vociferously), then decides whether to get on with restructuring the military, ending appeals to the Privy Council, extending the benefits of marriage to unmarried couples, or whatever. The pattern is unmistakable.

So it was with incredulity and concern that I read and listened to speculation last week that Sir Geoffrey Palmer might be named to the Court of Appeal - indeed, might be its next president.

Could the Attorney-General, Margaret Wilson, who was president of the Labour Party when Sir Geoffrey held high political office, seriously be contemplating making such an appointment? Was there any chance at all, I wondered, of a former Prime Minister being appointed a top judge, and by his own political party at that? I mean, New Zealand is a small country and all that, but not that small.

Well, no one knows for sure how serious this trial balloon is. But if it is being considered in any way, shape or form, it would be an appallingly bad thing to do.

First, and most importantly, Sir Geoffrey is a former Labour Prime Minister. He was a long-time politician and has deep and publicly obvious roots in one particular political party.

Keep that in mind, then look around the English-speaking world and ask when was the last time a former Prime Minister was appointed a judge, let alone the top judge.

I am not aware of it happening anywhere in modern times. Indeed, in New Zealand you have to go back nearly a century to Sir Robert Stout (who became Premier in 1884 and Chief Justice in 1899).

The point is not that this is something that is simply no longer internationally acceptable and would make New Zealand look like a Mickey Mouse holiday resort, though that point could be made. Rather, the point is that judges today are nowhere near as respectful of and deferential to the elected Legislature as they were 60 or 70 years ago.

If (as was once the case) judges were studiously deferential to the enactments of the elected Legislature, appointing a former politician as judge might be bearable.

Why? Everyone would know that the judge's views, including his party political views, would have little opportunity to be expressed. He would get to make law only at the margins, as it were, so it might just be palatable to acquiesce in such an appointment.

But those days are gone. Unelected judges today are nowhere near as deferential to elected parliamentarians as they were half a century ago. Today, whatever one thinks of it, the talk is of some sort of partnership between the elected Legislature and unelected Judiciary.

Some judges interpret statutes in the light of their own personal view of what is fair and just. Indeed, the Judiciary has taken an incredibly expansive view of our quite circumscribed Bill of Rights Act, which has, as a happy coincidence for them, served to hand a great deal of social policy-making power over to those same judges.

And now into that mix of judicial activism, speculation has it that Ms Wilson wants to appoint as a top judge, with lifetime tenure, a man who was formerly Prime Minister and leader of her own party. The problem, of course, is not that Sir Geoffrey would be biased.

The problem is one of appearances, in particular the appearance of someone so closely connected to a political party having the chance to interpret laws made by his own party.

Could anyone blame Opposition politicians for thinking he might exercise that power in line with the views he has articulated when a politician?

The answer is obvious and raises two further matters. First, the Opposition, once back in power, will immediately want to appoint as a top judge one of their own party politicians. Having opened the door to such practices, Labour could hardly object.

Secondly, even before the Opposition gets back in power it will feel justified in criticising all Sir Geoffrey's future decisions it doesn't like. Again, who could blame it?

But that's not all. Sir Geoffrey has himself gone on the record, repeatedly, as favouring and endorsing a broad, vigorous approach to judicial interpretation. For example, he has welcomed the judges' expansive use and interpretation of the Bill of Rights Act, although in proposing its passage he assured Parliament it would create no new remedies.

A few short years later, when the Court of Appeal "discovered" this act subjected the Crown to potentially unlimited liability for its breach, Sir Geoffrey applauded the decision. When reminded of his assurance to Parliament, he said: "I am amused at the different interpretations placed on what I said. Bills are made to pass."

Again, the point is that if the Government wants to appoint someone who looks favourably on an activist Judiciary, there are many candidates to choose from who are not former leaders of its own party and not largely responsible for the passage of some of the statutes they will have to interpret as judges.

Perhaps Sir Geoffrey, in keeping with his stated principle, would decline any offer of judicial office. But the matter cannot be left to his discretion. After all, this appointment, no matter how much Sir Geoffrey struggled to be impartial, would have the effect of politicising the Judiciary.

It would further undermine (for good reason) politicians' reticence to criticise judges. All one might say in its favour is that it provided a good argument to those seeking to retain the Privy Council.

Appointments to the Court of Appeal are made by the Attorney-General. If recent speculation about Ms Wilson actively considering appointing her friend and former political colleague is true, this trial balloon needs to be shot down immediately.

Helen Clark needs to float her own balloon that if this goes ahead, Ms Wilson will lose her job. Otherwise, the Prime Minister, too, will be responsible for all the bad consequences that follow.

* Jim Allan is an associate professor of law at the University of Otago.