Power struggle on judiciary role

Welcome to Judges versus Executive, a fight as fierce as any Helen Clark has presided over in Cabinet, or Sian Elias in court. For nearly two years there has been unprecedented sniping between New Zealand's most powerful politicians and the country's top judge.

The Clark Cabinet, in particular Deputy Prime Minister Michael Cullen, has dubbed Elias a "judicial activist".

For her part, Elias has gone personal, criticising the Prime Minister for showing a "lack of understanding about judicial independence". She has complained in front of a British select committee over the funding, administration and very name of the Supreme Court, which last year replaced the Privy Council last year as New Zealand's highest appellate court.

And she has repeatedly warned international jurists of her fears that "judicial independence is at risk" in New Zealand.

There's more. Tussles over renovation proposals for a new Supreme Court building, judges' pay rates and superannuation schemes - issues that would seem petty if important principles were not at stake - earned Elias public scorn from former Attorney-General Margaret Wilson as the judges' "shop steward".

Conventions that have governed the relationships between politicians and the judges for decades and ensured mutual respect, at least in public, have been called into question.

At first glance it may seem like a personality clash between powerful forces led by two strong-minded women. But the clashes mask a real battle for supremacy in 21st-century New Zealand.

Elias would not be interviewed for this series. But she is on record - several times - as questioning the extent of Parliamentary sovereignty and has raised the possibility of a stronger role for the judiciary in New Zealand's constitution.

When tensions were high last year, Clark said judges should "stick to the bench" - if they chose to go into the political arena they would get a political response.

The Prime Minister remains adamant. "I always thought the issues she was drawing attention to were more minor administrative issues that didn't go to the heart of judicial independence, which must be upheld and fiercely protected." Clark is clear that the boundaries between the courts and parliament must not shift.

The seeds of growing discontent did not emerge publicly until the Court of Appeal's seabed and foreshore decision was made public in May 2003. 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.

The Government could have gone to the Privy Council, or waited to see how many applications to the Maori Land Court for customary use declarations were upheld.

Instead, it legislated to assert its rights and found itself offside with Maori.

Government politicians did not demonise the Chief Justice immediately. But 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.

"That's why Michael Cullen picked on her," said a well-connected barrister.

Others disagree. "Once you're sitting on the bench old loyalties go," said a senior Auckland Queen's Counsel. "That was just another canard put out there by the Government ... I thought it was crap actually."

It was left to Act MP Stephen Franks to spell out what some high-ranking Government politicians were saying in private - that the Chief Justice should not have presided over the case "given her history of advocacy and campaigning in the area" while advising the New Zealand Maori Council during Treaty of Waitangi claims in the 1980s.

Franks himself rails against "hero judges"and "judicial activism". But he is honest enough to say it really suits the executive that treaty rights are not directly spelt out in legislation that cements racial distinctions in place but leaves it to the courts to determine what those distinctions should be.

"If a court interpretation is controversial it is a simple matter for politicians to claim judges are being 'activist', making law instead of upholding it."

Franks' analysis of the judiciary's predicament is shared by experienced politicians such as New Zealand First's Winston Peters and Act MP Richard Prebble.

Despite the final passage of the Government's foreshore legislation the reverberations continue, and it is now the catalyst for a highly politicised public debate about the place of the Treaty of Waitangi and respective roles of the judiciary and Parliament in the 21st century.

The tectonic plates are now poised to shift and scrape again as a "constitutional stocktake", unveiled by Clark at the last Labour Party conference, begins.

United Future Leader Peter Dunne, who chairs the Constitutional Arrangements Select Committee, is adamant that his committee will not be a political poodle.

The National Party has refused to take part, and there are suspicions that the Cabinet is more intent on window-dressing than results. But, fired-up and raring to go, Dunne wants the stocktake completed so MPs can get down to examining where New Zealand should go next, and who gets to rule the roost.

He decries the public battles between the judiciary and the executive.

"It's not just Elias ... it's a two-way situation ...

"All that sort of stuff gets in the way and I think it's just sort of clouded the issue. I just think everyone needs to take a deep breath and pull back from it."

Dunne says the committee will engage with the judiciary. "But I think the supremacy of Parliament is sacrosanct. I'm not proposing a more activist role in terms of striking down bills that are unconstitutional or anything of that nature.

"I think New Zealanders would prefer that ultimate political accountability rested with the politicians, not unelected courts ... the debate is about where the boundary is drawn between the courts and Parliament."

Elias built her name by fighting Maori claims to the Privy Council.

Since becoming Chief Justice in 1999 she has made no bones that she wanted New Zealand's highest appellate court based here. After trekking to London for a Privy Council hearing in 2002 she declared the institution "anomalous".

Later that year Elias expanded on the respective roles of the judiciary and the executive. "Executive Government [the Ministers of the Crown] have to act under authority of law, or they will be constrained by the courts", she told a women's business network.

"The separation of powers set up by our constitution requires the courts to give effect to the laws made by Parliament, to respect the actions of the executive, within the scope of their lawful authority, but to prevent abuse of power wherever officials act without authority or for improper purpose."

The Chief Justice said there was no tension between Parliament and the courts because they had to apply the law made by Parliament. But there was tension between the executive and the courts because it was the constitutional authority of the courts to keep officials and ministers within their legal authority.

In the majority of such cases official conduct is upheld as lawful. But the cases in which it is not upheld "can be extremely controversial".

On July 1 last year, Elias joined Justices Tom Gault, Andrew Tipping, Peter Blanchard and Sir Kenneth Keith to become the inaugural bench of the Supreme Court, which will demonstrate its determination to hold the executive to account in two weeks' time when it hears submissions from Algerian refugee Ahmed Zaoui's lawyer on whether an upcoming review of SIS classified documents should also encompass Zaoui's human rights.

The fact that four of the five Supreme Court judges also sat on the Court of Appeal in the foreshore case did not escape Government notice when, last year, the court awarded Zaoui bail over the top of Government objections.

 

Clark ignored New Zealand First urgings to simply change immigration laws ahead of the December hearing so that Zaoui, whom MP Dail Jones alleged "was clearly a threat to national security", could not be released on bail.

Elias broke with tradition and allowed Radio New Zealand to broadcast live the entire December 9 hearing and her subsequent delivery of the court's unanimous judgment that it was not convinced Zaoui "posed a risk to New Zealand".

Beehive aides were horrified at the very public face-slap.

A top barrister told the Herald that other lawyers who had appeared before the Supreme Court on more mundane matters had slammed Elias' move on the bail hearing as "megaphone justice".

Unlike other courts, where television crews use their own cameras to film trials, the Supreme Court has its own gear.

"Elias may be buried in that dingy basement courtroom across Molesworth St, but there's no way the Beehive will miss her rockets," the barrister said.

Clark says she is not concerned at a possibility alluded to by Sir Kenneth Keith during the bail hearings that she could be asked to provide written testimony.

Security Intelligence Services Director Richard Woods is constrained from providing "classified information". The prospect that Clark, who was not similarly constrained, could provide testimony wearing her SIS Minister hat would not gel, according to the Prime Minister.

But she has made clear that the Government will review its options at the end of the Zaoui legal saga. "What is clear is the Government has always acted on legal advice. It can only administer that law as it is advised that it stands."

The Government's legal track record in the Zaoui affair is embarrassing. Solicitor-General Terence Arnold has been comprehensively defeated in all five proceedings the Crown has brought against Zaoui.

Clark describes the law as a "dog's breakfast". The Government will review the legislation once the court processes finish.

The appointment of Cullen as Attorney-General when Wilson became Parliament's Speaker was expected to defuse tensions. But Elias is not easily silenced.

Early last month she once again "spoke out", this time against harsher punishment, when she said that long prison sentences might not make communities safer.

Cullen was said to be privately irate. And the Chief Justice was immediately attacked by National and Act, who accused her of "trying to curry favour with the Government after a year of frostiness".

"Dame Sian Elias' assertion that the Sentencing Act 2002 is a 'restrained and sophisticated' statute is yet another unwelcome contribution by her to the political debate," said National's Justice spokesman Richard Worth.

"The issues around sentencing will be at the very core of debate in this year's election and the political parties have dramatically divergent views on the usefulness of the debate.

"In this instance it looks strikingly as though she is making the choice for Labour - how can she expect other political parties to have confidence in her ability to impartially and fairly interpret the law as the nation's Chief Justice when she enters herself directly into the political debate?"

Ten days later, Sian Elias and her husband Hugh Fletcher joined a soiree held by the Prime Minister for visiting Australian Prime Minister John Howard. As Elias - resplendent in a red frock - held court in the middle of a hotel ballroom, Clark and Howard worked the room.

The body language was unmistakable.

There is more than one round yet to go in the battle of Molesworth St.