ABOVE THE LAW.

Dominion, Volume 4, Issue 1153, 14 June 1911, Page 8

ABOVE THE LAW.

j fHE MINISTRY AND THE COURTS. | NEW METHODS. ; UNDESIRABLE TREND OF EVENTS. ! - WHERE WILL IT END ?

The full light of publicity that has lately been thrown upon-the attituilo of the. Government towards the Supreme Court Bench has to somo extent withdrawn public attention from a matter equally importnnt—tho altitude of the Government towards the inferior tribunals of the country. The Tramway Appeal Boards, last to bo added- to tho already long list of minor Courts in Now Zeuliind, have as yet attracted comparatively little notice. Yet, by-well-inform-ed people, the establishment of these tribunals is regarded as the latest step in a Government progress which will end, if it be'not arrested, in hopelessly .undermining the efficienoy of tho inferior Courts in New.Zealand.. ■.The'critical (review .which follows emanates from one who has an expert knowledge of : the subjects with .which h» 'tlt-als:—

"The Tramway. Appeal Board is one of tho numerous tribunals that have been set up by the present Government in a spirit wholly foreign and antagonistic to that* of tho British Constitution. The Ixjard consists, in Wellington, of a magistrate, the president of the Tramwavs Union, and the Town,-Clerk. These gentlemen sit in review, upon- tho decision's of the tramways engineer./'"Whether, they nru'competent *tcj do'so is'a" matter open to :Very grave doubt. Obviously, a' minor defect would bo remedied if the assessors, who sit with the magistrate Jipori tho board, were absolutely independent, persons. This suggestion was mado by' Mr.. Kettle, S.M.j in -Auckland.. It is plainly right that "'no'official of the corporation, and no official of tho union, jhould sit upon the board. There is no parallel-.to be drawn from the -case of ■wages. Boards. . 'In' train way 'appeals questions: of fact have to be elucidated ,under rules of evidence, and' there is no lea son why any interested party should be represented upon tho board. For. Political Purposes. ' "There is no . doubt, that 'this ,tribunal Vas instituted'for political purposes. All tho municipal corporations in New Zealand Vehemently opposed tho Bill under .which 'the boards were created, but their .views ,wcrs disregarded, and. the, Minister for -Public "Wdrks, who' \\ •as in charge of the Bill, was actuated.solely by the views of motormen and tram-conductors. He— and Parliament going blindly in his wake —totally ignored tne opinions of experts throughout the Dominion. .When _ the owners of tramways, municipal corporations and companies, finally •, saw that the Minister'i.was determined to 'interfere with tho- arrangement of ,the tramways, they .suggested that if .a 'bodrd ' was set tip, its,'president. should ;be.a jiidge' of the ,Supreme.Coilrtij or the president'of' the Arbitration Court. The men preferred , ; a magistrate, : and-, a; ■magistrate;was ichosen, accordingly. '..I "Tho wjs'dom 6f ; .appointing)- a', judge instead of a magistrate will be realised when it is remembered that a judge cannot bo removed except on tho address of both Houses of Parliament to tho Sovereign, and that his salary cannot be diminished. To increase a judge's salary Tequircs a ' special ''/Act' of Parliament.' Magistrate's salaries/ nnHlic'-.bther -hand, are not permanently fixed amounts. They are fixed upon the Estimates from year. :to year,-. : aud the Increase or decrease of a magistrate's salary depends upon the whim of tho Government in power. I do not for a moment suggest that, political influence-has been used on magistrates, but it lis quite, clear that ~a magistrate: cannot act with that clear faith in his own independence that characterises our Supreme Court Bench, and which has, by i-all' /thinking* - pcoplej, been .regarded' as an absolute necessity' l in judicial administration. Tho Trent!. "In this connection the 'trend of modern administration under, our Liberal Govern-; meqt.'should bo. fully' considered. '- Under! an autocracy such as the present Ministry, there is no protection for the property of tlie subject save from an'independent tribunal of the same calibre as the Supremo Court. In face of this plain fact, the range of a magistrate's duties is being steadily widened. Magistrates 'habitually deal with questions of contract and tort up to £200, and some may deal with cases in .'which sums: up to .£SOO are involved. In addition, magistrates have, an extended summary jurigdictioji.. in. relation to . criminal offences. They .are chairmen of'.licensing committees, chairman "of railway'appeal'boards, and chairmen- of Assessment Couits. Usually a magistrate is coroner, and magistrates have jurisdiction in respect of matters of income tax, and of old ago pen- : sions, Magistrates deal with breaches of awards .under the Arbitration Act. In ■mining districts the.v have extended powers in dealing with water. Tights and other classes of property that become matter" of litigation. Magistrates conduct investigations in cases of marine collisions and disasters. Now they have been selected to act as chairmen upon the 'tramway appeal boards. . „ "It has lately been the custom of tho Government, instead of appointing barristers of eminence, or - judges of' the ' Supreme Court, to conduct commissions under-the Commissions Inquiry Act; ■requiring a high degree of legal knowledge in those who handle them, to ap--point. magistrates. It cannot' be expocted that these gentlemen, whose whole timo is occupied in dealing with matters in .the lower courts, should have a"sufficient grasp of law i'o enable them to act efficiently. upon these commissions. This was .exemplified recently, when a magistrate refused to state a caso for the Supremo Court;.

"Ono undesirable thing in connection with t'ho tendency of the day is tho simulated desire of tlie Government to make luff cheap and to. do.away with appeal. To a large extent they have taken from the Supreme Court control of .inferior courts. . For instance, no appeal can be made from the decision of' Justices of tho Peaco on the'ground that there lias'been an improper admission or rejection of evidence. Tile implied suggestion is that appeals on this ground arc often frivolous and that wealthy men sometimes gain an advantage by ■relying upon them. As, however, the Supreme Court has power to allow a sum'not'exceeding £10 10s.'' a day'on a suit of','appeal, it. is quite'evident thdt' it 'is able to'protect even poor litigants in such cases.

A Glaring Instance. "A much more glaring instance of this nature'is to " bo observed in Number 14 of the 'regulations made under the Tramways Act''.and gazetted on February 2 last, governing procedure in tramway appeal cases.. This 'regulation reads:— The board shall, in respect of appeals hereunder, have all the powers, of .a commission under tho Commissions Inquiry Act, 1008, and may in its discretion accept, or. reject any evidence, whether legal or "Tbo effect of this regulation is to allow an inferior Court, presided over by a magistrate, to jettison tho whole of the law of evidence which has been' evolved hy the most brilliant ' legal minds in England to safeguard litigants and to ensure that' all actions shall be conducted in a legal and scientific mauner. An instanco in point occurred at the last sitting of the Tramway Appeal Board in Wellington (in the case of Iviernander v. the corporation). On that occasion the solicitor for the corporation desired to call four or five inspectors to prove certain offences which the management contended had constituted tho grounds upon which the appellant was dismissed. The magistrate'stated that the board had decided not to accept any such evidence and merely accepted evidence relating .!*) the offence mentioned by the appellant in his notice of appeal. In face of this unanimous decision by tho board, the solicitor .for the corporation was powerless. The effect of this action by the board was to allow the appellant practically to confine tho case for the corporation to such facts as lie choso to select. In-t'he next local case the procedure adopted was somewhat different as the magist'rato there very properlv allowed tho corporation to state the facts upon which dismissal was grounded, and requested that .tho cor*

poration should furnish details of tho reports in connection with such offences to tho appellant. ' . • - -

Native Land Court. "To further cmphasiso the inroads made on our constitutional system of judicial administration,, it is only to'point out that the Judges of the Native J.and- Court hold office during the pleasure of the Government. These Judges, all of whom fire honourable men, are paid miserably inadequate salaries, starting at- about .£SOO a- year, .and havo to deal with-cases which sometimes involvf.- property worth a quarter of a million. That there should be the slightest suspicion that these Judges should be dependent upon Parliament—or, rather, upon the Ministry, which t-o-day is Parliament—for adequate remuneration, is a death-blow ,:to the liberty of the subject.In this connection it must also be remembered that us far as ordinary legal business goes, actions in tlie Magistrates' Courts are often more vital and more important to litigants in relation to. tiop.s of about J;2I) than arc matters of .£SOO or .£IOOO between merchants, whose cases are" conducted in the Supreme Couit. For this reason alone it is necessary, in tho interests of the poorer classes of the community, that magistrates should bo in the same independent position as Supreme Court Judges. It is, moreover, a sine qua lion, if we wish to have uniformity in the administration of justice, that free and full access to the Supreme Court should be allowed to litigants who desire to have magistrates' decisions reviewed.

"Lord Brampton, who was one of the most eminent Judges oil the King's Bench at th© end of the nineteenth century, states in his 'Reminiscences' that, however njen'rail at them, the Superior Courts of England are the safeguards anil protection of the life, liberty, anil property of all his Majesty's subjects. Unfortunately the , trend of democracy in this country seems <to.be in the direction of ruining the one institution in the British Constitntioiir-namely, the administration of justice-^which has been in past times the envy of all nations, and has earned for. the British Constitution IKo'iiaiflfi.oi being the best in the world. It is well kndwii to historians that England touched her lowest depth of degradation. in the eighteenth century, • when, according to Swift; Judges decided cases of treason only after ascertaining the wishes of the party in power. Oihet Inroads. "There have been numerous othui inroads on the fair field of British justice by< tin Liberal Administration in NewZealand. In the Department of Customs the' Minister figures as both claimant and judge in .many cases. Payers of Customs dues can go ito the Supreme Court only in regard to the rate upon which they aro assessed.' Liability to pay duty is decided by tho Minister himself. •In effect, lie fixes the price and collects the money. Similar autocratic powers are vested in tho Minister fo( Public "Works. This eort of thing has also been tried by the Liberal Government in England. A recent case was one affecting a Church of England school in Swansea (Wales). The local authority, strongly "Nonconformist in tone, denied'.the Anglicain-school: support . equalling, . that granted to State sCjliools. / As a "result • tho managers of the schoolwere ■ reduced to paying teachers at ; their own expense, or "from, the proceeds of public subscription. Redress w;as denied-, by the Department of Education, but a procedure, is available in Eng.land 'which unfortunately .is not available in New Zejdand. The King's Bench Court of Appeal, and the House of Lords, in-turn decided that the attempt of the local authority to ruin the School was illegal. The Department of Education, practically the Liberal Cabinet, had decided tho ease on political lines, but the Courts repaired the wrong. 11l New Zealand," ' apparently, tho Ministry is above the law, and where the thing will end no man can say."