Thursday, March 31, 2005

Franks on judicial recalls

In an opinion-piece in the Herald yesterday, Stephen Franks attempted to exploit current tensions between Parliament and the judiciary to argue in favour of judicial recalls - letting the public vote out judges. There are two problems with this. The first is that our judges are not "activist"; Franks' chief example - the court of Appeal decision in Ngati Apa v Attorney-General is entirely in accordance with earlier precedent from both New Zealand courts (e.g. R. v Symonds) and the Privy Council. It was the decision in In Re: Ninety Mile Beach which was out of step with New Zealand law, not Ngati Apa. Likewise, no matter how embarassing the government finds the decisions in the Ahmed Zaoui case, they are consistent with earlier rulings. The only way these cases can be judged as "activist" is if you dislike the outcome and don't care what the law says.

But the bigger problem is what this would do to judicial independence. Judges are supposed to impartially interpret the law without fear or favour. But judicial recalls would allow any group or (wealthy) individual who is unhappy with a decision to threaten their position. Judges would therefore be at risk of being intimidated into ruling in certain ways, regardless of what the law actually says. And preventing that is exactly why we introduced life-tenure in the first place...

Rather than promoting an impartial and independent judiciary, Franks' proposals would promote one that was beholden to public opinion and the powerful. And that is something we should all be highly suspicious of.


Again I see much angst over constitutional hypotheticals. Yet any system that is sufficiently complex to actually work contains a hypothetical chance of failure.

Until or unless the system reveals that it is obviously broken, let's not rush to fix it.


Posted by Anonymous : 4/04/2005 10:21:00 AM