Justice not well served, Elias warns

LANE NICHOLS
Last updated 05:00 14/10/2011

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The country's top judge has taken a veiled swipe at the Government's justice policies, warning that some Cabinet decisions threaten the "fragile" independence of the judiciary.

In a rare public critique, Chief Justice Dame Sian Elias warns that decisions "which seem quite innocent" are undermining the basic principles of the constitution.

In a speech at Waikato University last month, Dame Sian broke with convention, criticising moves by politicians to interfere with the courts in pursuit of cost savings.

"It is not always easy to appreciate that proposals which seem quite innocent or efficient or pragmatic may trample on basic principle."

It is not the first time Dame Sian has hit out at the Government.

There were calls for her to resign after a 2009 speech in which she criticised the "punitive and knee-jerk" response of successive governments to criminal justice issues and highlighted concerns about prison overcrowding.

That speech drew a rebuke from Justice Minister Simon Power, who told her to stay out of government policy.

In her latest speech, Dame Sian cited concerns about the Executive branch of government making decisions around court fees which restrict people's access to open justice.

She questioned how the public would regard the imposition of fees to see their local MP or Cabinet minister.

The chief justice also made apparent references to the Government's criminal justice reforms.

Control of court processes through new rules was seen by politicians as an opportunity to reduce prison populations and move cases through the court process faster through settlements and guilty pleas "to reduce costs and promote efficiency".

"But if we value the independence of the courts and access to them as constitutional goods, it's hard not to be uneasy that the boundaries between executive and judicial responsibility are often not directly confronted," she said.

Dame Sian voiced unease at the courts being "folded back" into the Justice Ministry, saying that judges had no effective say over court budgets and little influence around priorities set by the ministry.

She also warned that proposals to share court information with police, Corrections and public defenders were often made "without thought for the independence of the courts and their role as a distinct branch of government".

The country was historically apathetic in terms of constitutional arrangements and not always vigilant enough about subtle changes, which deserved "close scrutiny". Mr Power would not comment on the speech yesterday, saying he had yet to read it.

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"But I always welcome constructive suggestions on how we can improve our court system."

He had "enjoyed" constructive discussions with Dame Sian on these matters over the past three years.

Wellington lawyer Robert Lithgow, QC, agreed the Government's rushed justice policy changes were undermining the judiciary's independence.

The changes "will ultimately not have much to do with truth and justice but have a lot to do with political theory".

He backed the right of Dame Sian to speak out.

"If she believes as head of the judiciary that their rights, privileges and role in the constitutional set up are being undermined, then she absolutely has to say so."

- The Dominion Post

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