Lawyers fear politicians’ belittling of Judiciary

Press, 19 April 1984, Page 8

Lawyers fear politicians’ belittling of Judiciary

PA Wellington Recurring political attacks on the Judiciary are likely to reduce the authority and status of the courts, a group of Auckland lawyers believe. The lawyers, members of the public issues committee of the Auckland District Law Society, have said that such attacks may lead to Government Ministers exercising power with considerably less regard to those rights and freedoms which the courts protect. The committee also said it was disappointed that the Attorney-General, Mr McLay, had not been more outspoken in defence of the Judiciary. The committee was formed to consider and comment on public issues, particularly those with a legal element. It said there had been a marked increase recently in the number of instances where politicians had seen fit to comment on and criticise certain decisions of the courts. “In view of this trend we feel that the time is now ripe to discuss the propriety of this type of action. “Our research has revealed that these continuing attacks are causing the Judiciary, and many members of the legal profession and the public, grave concern,” the committee said in a report released yesterday. Because New Zealand did not have a written Constitution to define the boundaries of government, certain conventions played an important role.

The lawyers quoted a leading constitutional law authority, Professor de Smith, from his book “Rules to Protect Judicial Independence: “By' convention

judges must refrain from politically partisan activities; and although they can criticise the working and content of legislation and the conduct of members of the Executive they should be careful not to take sides in matters of political controversy. “By convention members of the Executive are expected to preserve a reciprocal restraint when commenting on the words and deeds of judges, though if criticised by a judge they are not obliged to remain mute.” The convention was a reciprocal obligation and the importance of adherence to it by both sides was fundamental to its survival, the report said. The lawyers said they were not aware of any breach of the convention in recent times by New Zealand’s Judiciary. There were, however, an increasing number of instances of its breach by Cabinet Ministers and members of Parliament. “The courts and judges are one of the primary defences for the individual against the arbitrary and autocratic exercise of power. If the courts and judges are attacked with apparent impunity by people in positions of power, then the independence of the Judiciary may diminish as a result,” the report said. “No doubt Cabinet Ministers see the courts from time to time thwarting the implementation of the policies which the Government of the day wishes to pursue. These frictions and frustrations do not, however, justify some of the political attacks on the courts which have been a feature of recent years.”

The conventions did not mean that judges were to be regarded as infallible or immune from criticism, however. Informed and responsible public comment and criticism were as helpful as they were healthy. The committee said that the conventions, although not legally enforcible, should be observed as no good reason had been shown for their disregard. Standing orders of Parliament also forbade the use of “unbecoming words” against any member of the Judiciary, it noted. “We believe that such rules should be strictly observed and that similar restraints should apply to conduct outside of Parliament.” The committee said it was surprised and disappointed that Mr McLay had not been more outspoken in his role in defence of the Judiciary against recurring political attacks.

“Although part of the Executive — indeed, at the present time, the same person is both the AttorneyGeneral and Minister of Justice — the Attorney-Gen-eral holds an office which requires that often he stand outside his political or party position — in other words, a position of relative neutrality. .

“We believe this is one of those situations,” the lawyers said. Mr McLay said that he was concerned and angry about much of the material in the report. He believed that the convention did not exist or run in the terms suggested by the committee. It did not impose a blanket of silence on Ministers. It called for a kind of reciprocal restraint, he said. “The Government is responsible for determining

the general policy of the laws made by Parliament. It is responsible for introducing bills. “If a particular decision contravenes that policy, if it appears to go against Parliament’s intentions in passing a law, if it indicates the law may need to be changed as a result, even if it has an adverse effect on Government policy, there is no logical or constitutional reason why a Minister cannot comment.” Mr McLay said that Ministers were in no different a position from members of the public, academics, newspaper editors, or litigants who were dissatisfied with a particular decision and wanted to say so in public. “To suggest that everyone has this right to comment except a Minister of the Crown is neither logically or constitutionally correct,” he said. “In my view, so long as the integrity of the judge is not impuned, so long as the comments are appropriately respectful and restrained, there is no conflict with the convention and no lowering of the status of the court or the authority of the particular judge.” Mr McLay said that the report lacked all objectivity and if it was intended as a political document “then it should say so.” He had not had time to study it in detail, but he had found a number of places where it had incorrectly quoted people, quoted out of context, or been very selective in its quotes. He said he intended to write to the committee’s convener and the president of the Law Society setting out his comments.