JUDICIAL INDEPENDENCE.

New Zealand Mail, Issue 1057, 2 June 1892, Page 31

JUDICIAL INDEPENDENCE.

The most sacred tiring in the constitution we live under is the independence of the Bench of Justice. Therefore the worst thing which any Government has done in .New Zealand is the blow struck by the late Government at the independence of the Judges. That is clearly the opinion of the Times newspaper. That journal is of course not an authority for New Zealanders to slavishly accept about anything. The friends of the late administration and the opponents of the present Government have treated the Times as infallible ever since its criticisms were levelled at the Government finance. It remains to be seen whether they will continue to rely upon their authority now that he has dealt their friends lately in office the hardest blow which any Government has ever received since the passing of the Constitution Act. We accept the Times , because the Times is emphatically right. That journal, far removed from all local feelings, has taken the same ground as we took ourselves when writing about the judgment of the Court of Appeal, which the Privy Council reversed the other day ; the same ground as the Opposition of 1890 took against the Edwards appointment, and as a Government has made good before the highest tribunal in the Empire. Before the Edwards appointment there may have been a doubt about the strictly technical legal aspect of the case. A miserable attempt has been made by a paltry special pleader to save the reputation of the late Government by pleading that legal and technical doubt, and pointing to the judgment of the majority of the Court of Appeal as supporting testimony. We grant the doubt —what then? Nothing but this, that the doubt makes the conduct of those who deliberately appointed Mr Edwards a very great deal worse. There is an excuse for a lawyer who thinks that he is prevented by legal rules from reading together all the statutes bearing on a case by the light of constitutional principle. But there is no excuse for a politician when he deliberately refuses to consider constitutional principle before doing an administrative act. The strictly technical interpreters of the law said, and were entitled to say, that for them the consequences were nothing, whatever they might be. They had nothing to do but expound the law. The late Government knew the consequence of the narrow technical view to be fatal to the independence of the Bench—(l) they must be assumed to have known it by virtue of their very position ; (2) the argument was placed before them over and over again, and even from the Bench of Justice. Between the narrow way which ignored the most important of all constitutional principles, and the broad way lying in accord with that principle, they deliberately chose the former. Of malice prepense they disregarded the constitutional principle they were bound by their oath to maintain. The judgment of the Court of Appeal proved nothing so clearly as that. The public w hich had not expected the narrow technical line of defence was amazed, and in its amazement and horror realised that no Government of New Zealand had ever done so black a thing. Legally they might have been right, but they had no right to betray the constitution which they were sworn to protect. The public was with us when we pointed out that the Appeal Court had declared that the Courts of Law were bound by rules which honest administrations were bound to disregard. The Opposition of 1890 fought strenuously for the principle of Judicial independence. They lifted up their protest before the session ; they opposed the iniquity during the session ; they denounced it during the recess ; and when their chiefs got power into their hands in the following year they continued to occupy the same attitude. From the first they knew that the unconstitutional action of the Atkinson administiation was justified by no sort of necessity, had not been called for by any consideration of public utility even. Mr Edwards has long ceased to serve, and the public service has suffered nothing. Circumstances have abundantly proved the opponents of the appointment to have been right on the ground of expediency ; and the Privy Council has upheld their contention that the appointment was both unconstitutional and illegal. Yet a critic had the temerity to declare that the conduct which led to this triumph of right over wrong was factious from the first. Right is never factious ; Right is always Right. The base desertion of Mr Edwards in the House of Representatives is a striking proof of that. It was not conscience which made cowards of the administration ; it was the knowledge that a large contingent of their majority, so far from being servile, was ready to join the Opposition in upholding the Right. So much for the charge of faction brought by a journal which in the same breath denounces the Edwards appointment in terms absolutely without measure. It is a charge which may be dismissed with the contempt due to those who habitually hunt with the hounds and run with the hare. Neither sophistry nor time-serving can alter the fact that, thanks to outside authority, we have

escaped a great constitutional danger, nor can they diminish the public appreciation of the efforts by which this great result has been brought about.