For most of this year, we've had to put up with National criticising Labour for "violating" the constitutional convention of Cabinet collective responsibility by recognising the facts of life about MMP. In the process, National has painted itself as a defender of our traditional constitution in the face of the modernisation forced by the adoption of a new electoral system. Unfortunately, they seem to be a little one-sided about this. This afternoon, the government announced that it was appointing the Crown Solicitor, Terence Arnold, to the Court of Appeal. And in response, Murray McCully issued a stinging attack on the appointment, claiming that Arnold
is not fit to serve on the bench, let alone the Appeal Court bench
To call this grossly improper would be an understatement. One of our core constitutional conventions - and one thats a hell of a lot more important than the political management tool of collective responsibility - is that of judicial independence. Judges are supposed to be impartial arbiters of justice, independent of both the legislature and the executive. An important part of this is the convention that Members of Parliament do not, under any circumstances, criticise individual judges, or impugn their impartiality or ability. McCully has just pissed all over this with a firehose, simply so he can score some cheap political points by whining (yet again) over the refusal of the police to prosecute Labour MPs for trivial bullshit. And of course he's shown how hypocritical National's "defence" of constitutional convention is; rather than "one law for all", their rule seems to be "constitutional convention for thee, but not for me".
(Oh yes, and what was that I was saying about politicising the judicial appointments process...?)
In that case should we have an apointment process that is entirely politically independant?
ReplyDeleteGenius: in practice, we do. While the Attorney-General nominally reccommends judges for appointment, the legwork is done by the Solicitor-General, in consultation with the Chief Justice, President of the Court of Appeal, Law Society, Law Commission etc. And generally, it works rather well at giving us competant people irrespective of politics. Except when we have an Opposition who decides to politicise the process by flinging shit around, that is.
ReplyDeleteMaybe that political independence should be enshrined in law. As opposed to relying on how it traditionally works
ReplyDelete- or is it already?
I mean it is the appearance that labour may have influence that probably helps make national do what they did.
ReplyDeleteI preface my comment with the observation that I in no way seek to impugn Terrence Arnold - my focus is on the general question instead.
ReplyDeleteYou state: "judges are supposed to be impartial arbiters of justice".
I agree entirely, so does Murray McCully, which is why he's making his comments. He wants judges appointed who will "be impartial arbiters of justice" and doesn't feel that the Solicitor-General is such a person.
It is an invidious position to find yourself in: which is the more important constitutional convention?
1) That judges should be free from criticism by Parliamentarians; or
2) That the government should only appoint judges who will "be impartial arbiters of justice".
No wonder the Maori Party and the National party are cosying up, they have both got the biggest chip on their shoulder imaginable.
ReplyDeleteGraeme: Murray McCully and some party hacks may take the National Party line of biased prosecution decisions seriously, but no serious person does. He's just engaging in cheap political point scoring and trying to radicalise his base, at the expense of a very well established and bloody useful constituional convention.
ReplyDeleteI think the Bar Association's response to McCully [PDF] is worth reading on this.
i/s, this doesn't appear to be your finest hour.... you in effect concede to Graeme (as you must) the legitimacy of objecting (and even a positive obligation to object) to appointments to the bench where a rat is smelt. Your objection then boils down to the substantive claim that everything smells fine to you (and to the Bar Association) and to a bunch of name-calling: that anyone who disagrees with you (and the BA) is non-serious, a cheap-political-point-scorer, a shit-flinger, is-really-just-trying-to-radicalize-his-base, etc..
ReplyDeleteBut that substantive claim can't be part of any consitutional convention! So your objection is and must be misguided.
One could, however, see McCully et al. and also some of the Bar Association's remarks about the case as beginning a further articulation of our constitutional conventions, e.g., to the effect that the solicitor-gen. inevitably ends up too connected to the government to be appointed to a superior court (or at least that if they are then there's a built-in possibility of a legitimate stink - perhaps the threat of such a stink could be seen as helpful in that it would create an incentive for careerist sol-gen's to bend over backwards to *not* get too cosy with govts of the day....). That non-MMP-instigated evolution of our underlying constitution is surely just as legitimate in principle as any MMP-instigated evolution.
Is an elusive/amorphous executive under MMP less/more of a worry than a Sol-Gen on notice that any appointment of her to the bench might be legitimately questioned? McCully et al. (if they could think clearly) would say "more", you would say "less". I tend to think McCully et al. are right about this (I have no view about the rat-smelling in the case itself) and that you are wrong, but it's hard to be sure. I'm open to having my mind changed on this... but a bunch of name-calling won't do that.
I/S:
ReplyDeleteI have read the President of the Bar Assoc's personal endorsement of Arnold, McCully's remarks and your post that you have linked.
I acknowledge that the point of your post was to paint the National Party as hypocrites on adhering to constitutional conventions. However, when you say it was done "simply so he can score some cheap political points by whining (yet again) over the refusal of the police to prosecute Labour MPs for trivial bullshit," you are far too quick to excuse the series of criminal allegations against Labour personnel and ignor the National ones in order to score some points of your own against McCully. He has gone a lot further than is normally acceptable public discourse in his position, and it was extraordinary and even unique; but don't the facts merit it? When you use the word "trivial" to dismiss these concerns you may have been considering (from McCully's list):
- Assault/David Benson-Pope
- Dangerous driving, speeding/PM's motorcade
- Forgery, defeating course of justice/Paintergate
That alone would be marginal calls, however if we add:
- Disorderly behaviour (?)/Shane Ardern
- Contempt of Court/Nick Smith (Where Arnold himself personally conducted the prosecution)
Then the water becomes more murky.
I don't know if you have any OIA stuff on Arnold's involvement in the sedition prosecution - but I wouldn't be surprised. And what other cases have I missed out here - I feel it may be many.
The system of judicial appointments is not satisfactory. It is wrought with favours and erring on the side of the government in order to gain advancement. For you to use the "judicial independence" convention in order to defend Arnold and criticise McCully is problematic. Should an MP never speak out? Are they supposed to pull all of their punches and then when they become Attorney-General or Justice Minister etc. then appoint their set of lackies? And so the secretive system continues. I am very surprised that you are seemingly in support of the current system.
Let us remember that Justice Morris' comments at a rape trial and his "nigger in the woodpile" proclivities should have been detected and acted against earlier to prevent his appointment. The current system of mates backing mates leads to those sorts of undisputed back-room selections that can quickly turn to embarassment.
You said this in your linked post:
"(Of course, National, ACT etc could claim that they're exposing the dirty little secret behind our supposedly "nonpolitical" judiciary - but then I'd expect them to be presenting actual evidence of a real and systematic bias in appointments, rather than simply trying to smear the government with allegations that it might take place in the future.)" [My emphasis]
- Well isn't that exactly what has happened here? Arnold has made a series of very pro-government and anti-opposition decisions in his office and McCully has listed them. Aren't they correct to have made those allegations because that is what has now occured?
I would also add Sir John Jeffries to the list of dodgy appointments. He is a former lacky entangled with the apalling failure of justice connected with his tenure as Chairman of the farce that is the Police Complaints Authority (esp. the recent police rape cases and handling were all signed off as legit under his watch), was a reactionary head of the Press Council and now, after cementing his pro-government credentials has been entrused by Labour to act as Commissioner of Security Warrants. Jeffries post here. Is that appointment satisfactory too?
What an comprehensive, if completely lunatic, post t selwyn. I suppose one should admire your highly developed lager mentality and respect the way you get through the day with all those red walls closing in, but I don't.
ReplyDeleteIf the right in New Zealand spent as much time developing policy as it did it sense of grievance they would be in government already. FFS, give it up already! The constant, tedious bleating about conspiracy and corruption from those who still can't get their head around this cursed thing "democracy" and believe we should all be grateful for the noblise oblige of their corporate masters simply makes the bile rise.
Just get over it, stop whining and whinging and crying like a bunch of snotty nosed spoiled little rich kids, and get some freakin' policies that reflect NZ in 2006 and not the moth ridden memories of that ghastly stuffed cadaver from the 1980's who pretends to be leading National...
PLEASE!
Whatever one thinks of the tenure of Terrence Arnold as Solicitor-General, his decision to go after Nick Smith is not one of the things to complain about.
ReplyDelete