Sunday, August 01, 2004

The fight between the Government and the judiciary

The war of words between the country's top judge and Cabinet Ministers still continues over the new Supreme Court. This war has been brewing since Dame Sian Elias handed down the Foreshore and Seabed decision in the Appeal Court. The Government refused to appeal the decision to the Privy Council as it was in the process of trying to ditch the council and form a new Supreme Court, against the will and wishes of most New Zealanders.

The Government instead responded by attempting to change the law - leading to the current Foreshore and Seabed legislation, and the Hikoi. It also changed the law to set up the new court and make Dame Elias head of that court. Now the head of the new court is publically criticising it, both in New Zealand and overseas, and the Government is not impressed. Helen Clark has said here comments were " minor" Michael Cullen, however, has a different perspective - one of "judicial activism".

The latest comments, from Cullen, were a strong reminder that Government sets laws, judges make judgements based on the law.

They follow Prim Minister Helen Clark's criticism of Maori Land Court judge Caren Wickliffe when she ruled that a large Maori East Coast coastal claim could proceed. Miss Clark said that she thought judges would have "rather better things to do with their time" than preside over such cases.

When judgements do not go the way of the Government, do cabinet ministers have a right to criticise judgments if they are based on law set by Government? Additionally, do cabinet ministers have the right to attack comments by judges such as Elias? Particularly when cabinet's Office Manual does forbid comments that reflect badly on the "impartiality, personal views or ability of any judge".

I would have thought Helen Clark and Michael Cullen have better things to do with their time.

Elias is putting forward her personal views. She is entitled to do so. The staff in Cullen's office have said the minister's comments were not an attack, but a "disagreement about the views she has raised".

But if concerns raised by Cullen are seen to reflect badly on a judge, the resultant comment from Cullen's staff is inexcusable.

Equally inexcusable is the Governments rush to implement a flawed court without the wishes of the majority of the people. Margaret Wilson, Helen Clark and Michael Cullen decided to set up the Supreme Court before any public select committee submissions were considered.

It is also ironic that four of the five judges on the Supreme Court presided over the foreshore and seabed case.

The refusal of the government to appeal the decision from the Appeal Court because it was going to scrap the Privy Council is coming back to bite the Government on the bum - hard.

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