Parliament vs Judges

Luke Malpass writes:

Regardless of where the negotiations land, however, it looks very likely that there may well be a close look at the power of the bench – its composition, the sentences it hands down, the precedents and case law it creates.

This is perhaps best seen as a periodic struggle for power that occurs between different branches of the government. And there is definitely a feeling among those who will soon be taking Parliament’s treasury benches that judges have encroached too far into the realm of inventing law, rather than dispensing justice.

At its heart it is a question of power and democracy. In particular a view among the right (and parts of the political left) that Parliament makes laws, but that over the years judges have begun to insert far too many of their personal preferences into the interpretation of said laws.

The three-strikes law, introduced under the Key government, is often cited as an example (even by some parliamentarians who fundamentally disagreed with that law). That will almost certainly be reintroduced by the incoming government.

The new three strikes law needs to do the following:

• Reinstate previous strikes from the former law
• Remove indecent assault from the regime as there is too much variation between offences at the bottom and top of the range
• Remove the manifestly unjust exemption for third strikes as judges have abused this provision by finding around 90% of third strikes would be manifestly unjust.
• Explicity state that the law must be implemented by Judges regardless of their views, and over-ride the Supreme Court decision that effectively told Judges they can ignore it
• The Attorney-General or Minister of Justice at the third reading should state that any Judge who feels sentencing someone under this law would be against their conscience is expected to resign as a Judge, rather than refuse to implement the law, and that a failure to do so would be considered judicial misconduct

But there is suspicion among many soon to come into government. Too many left-wing judges. Too many invested in fashionable causes. Too many hired to make the court look modern and diverse.

And it is why Winston Peters – in addition to seeking to be foreign minister – is understood to want to be Attorney-General. …

In New Zealand, appointments to the courts have always been political but not particularly politicised. …

April will mark 20 years since the Supreme Court heard its first case, and it has evolved in its own way. While many applaud the court, there is definitely an undercurrent of unhappiness within the legal fraternity about the quality and direction of the bench.

The problem is that basically all incentives for lawyers and judges – be it status, career prospects, respectability or worrying about their clients’ best interests – mean keeping quiet about these matters, even if they are unhappy.

In any case, both ACT and NZ First are keen to be much more active on appointing rigorous and black-letter law judges as and when able. National also campaigned on wanting to lessen judge discretion over sentencing.

This is arguably one of the most vital things the new Government must and should do. No Judge should be appointed above district court level who isn’t committed to the rule of law as widely accepted, rather than judges who see the law as play dough for them to model into a more pleasing shape.