Ministerial comments savour of ‘big stick’

Press, 6 September 1983, Page 19

Ministerial comments savour of ‘big stick’

PA Wellington Reported comments by the Prime Minister, Mr Muldoon, and the AttorneyGeneral, Mr McLay, on rape sentences “go too far and savour somewhat of bigstick wielding,” in the view of the public issues committee of the Canterbury District Law Society, an independent group of Christchurch lawyers.

Their statement refers to public debate on the propriety of Cabinet Ministers publicly commenting on what they see as inadequate sentences for rape. It emphasises that the function of the public issues committee “is to consider and comment on issues of public interest, particularly where there is a legal element.”

One point raised by the committee is whether the Minister of Justice and the Prime Minister are constitutionally entitled to state publicly that unless sentences for a particular crime are increased across the board, the Government will legislate to compel such an increase.

“Mr McLay has said that provided a ‘measure of restraint’ is displayed in the way in which public statements are made on judicial decisions, the way is clear for anyone to say what he likes,” the committee says. Mr McLay drew a parallel with comments made by other judges or by lawyers, academics, and newspaper editors criticising judicial decisions.

The committee says the Attorney-General’s stance overlooks two crucial points—the offices of the persons making the statements in this case, and the particular nature of the statements made.

“The danger inherent in criticism of judicial decisions by people of eminence and authority such as the Attorney-General and the Prime Minister is that the public may believe that these persons can, and will,

somehow influence judicial actions,” said the committee.

“This is because these persons, unlike newspaper editors, academics et al, have it within the power of their office to influence, whether by legislation or otherwise, the behaviour of the citizens of this country.

“One only has to look at the recent activity in the finance houses of the nation following the Prime Minister’s ‘edict’ on interest rates to see real evidence of this.”

The suspicion that influence may be brought to bear “is reinforced when one considers the particular nature of the comments made regarding rape penalties.”

The committee said the comments of Mr McLay and Mr Muldoon amounted to “no more or less than this”: “ ‘The Government would like rape penalties to be increased. “ ‘lf the courts do not comply with the Government’s wishes, the Government will see to it that legislation is passed which compels the courts to so comply’.”

The committee said it was of fundamental importance to the freedom, safety, and liberty of New Zealanders that the Judiciary should be, and be seen to be,

completely independent of the Government.

“Judges are appointed to carry out the law, to interpret it as they see fit, and to sentence those convicted of crimes,” the committee said. “That is their constitutional function.

“If there is any deviation from that, and any suggestion that the courts are being ‘directed’ by Cabinet Ministers (or, indeed, newspaper editors), then we do not have an independent Judiciary.” Judges did not have a general immunity from criticism of their judicial conduct, said the committee.

Criticism was always permitted provided it was in good faith and did not impute improper motives to those administering justice.

“This is no doubt what the Attorney-General was referring to when he made his comments that he was doing no more or less than that,” is said.

“Regrettably, however, in our view the reported comments of both the Prime Minister and the AttorneyGeneral go too far and savour somewhat of ‘bigstick wielding.' “This must never be allowed to happen.”

The committee also commented on Mr McLay’s statement that any involve-

ment by him in a Crown appeal against sentence “would be illegal.” It said, “If the AttorneyGeneral is entitled to announce publicly that it is his considered view that rape sentences are too light, there is nothing to prevent him from saying the same thing in a letter to the Solicitor-General, instructing him to bear that view in mind when considering any future appeals against sentence on charges of rape.” The distinction must be drawn between appearance and submissions in open court and the decision and discussions which preceded it, which were private.

“Mr McLay’s appearance on the sentencing of certain convicted defendants in the North Island some time ago was a public act. The discussions which he presumably had with the law officers involved before such appearance were private,” the committee said.

“No doubt it is undesirable for politicians and the Attorney-General continually and unhelpfully to meddle or be seen to meddle in the functions of the Solici-tor-General.

“But we believe that as the law now stands, there is nothing to prevent the At-torney-General taking a part as we have outlined.”