National Blog of New Zealand

Garth McVicar recently made comment that New Zealand ought to adopt a system of judicial election.

Presently judicial appointment is governed merely by convention. Candidates are drawn from a pool of experienced senior counsel and appointed by the Executive after a not insignificant amount of vetting. This longstanding approach seeks; amongst other aims, to ensure the impartiality of the judiciary.

Judges need to be free from fear or partisan politics in delivering their judgments in order to do justice between the particular parties before the court.

Mr. McVicar’s suggestion that the election of judges is the only way to hold the judiciary to account is patently untrue. It seems only to emphasise McVicar’s misunderstanding of the purpose of the judicial branch of government.

There’s an air of hypocrisy and sophistry in suggesting that judicial elections will ensure accountability, if we unpack McVicar’s comments this writer believes what is actually saying runs something more like this:

“We need more ‘hanging judges’. We also need a way of removing any judge who in the public’s eyes fails to live up to the ‘popular’ mandate for more punitive sentencing”

Such a system runs contrary to the impartial application and interpretation of the law that the courts exist to provide. If judges are elected it would result in a more politically charged judiciary. The very nature of the political process could jeopardise the proper execution of judicial office “without fear or favour, affection or ill will.”

The policy that McVicar espouses has nothing to do with accountability and everything to do with injecting bias and prejudice into the courts.

Edward Ryan, former Chief Justice of the Wisconsin Supreme Court noted that the judiciary “represents no man, no majority, no people. It represents the written law of the land… it holds the balance, and weighs the right between man and man, between rich and poor, between weak and the powerful.”

Policy and value judgements are not to be done by stacking the bench, they are the realm and purpose of the legislature.

Harsher sentencing does not work. Criminals do not rationally weigh up potential sentences - the impetuses for criminal offending are far more varied and complex.

It’s time McVicar was ignored, his comments clearly illustrate the ill considered nature of his viewpoints. Why does this man remain the go-to guy when there are so many other people; both professional and academic advocating for a fair and effective criminal justice system?

National has brokered a deal with the Maori party not to move to get rid of the Maori seats without Maori party consent and in return Maori will not attempt to entrench them (which they couldn’t do without National support anyway, besides the legal efficacy of entrenchment remains to be tested). However there will be a constitutional committee to examine issues of representation no later than 2010. This sounds like rather good fun.

So where did the Maori seats come from.

From 1852 suffrage was subject to a property qualification, all males over twenty one who owned or leased some form of real property above a certain threshold were entitled to vote for the House of Representatives, irrespective of racial origin. However, Maori communal title did not meet the requisite property qualification. This requirement effectively disenfranchised the overwhelming majority of Maori.

Thus in 1867 we saw the Maori Representation Act passed into law, a temporary measure in order to ensure special representation until the process of individualising Maori land title was complete. A process which took far longer than expected. This was not an idea limited to Maori, but was also extended to Otago gold-mining communities who failed to meet the property requirements because they lived in tents, rough shacks or lodging houses. They too were given special representation under legislation passed that same year. The only difference is that the Maori seats have survived, though narrowly at times.

Democracy requires that all interests should be represented and this is what the seats set out initially to do. However, following the suggestions of The Royal Commission on the Electoral System in 1986 with regard to the Maori seats one finds, “In a democratic system, the protection of minority interests ought to be the responsibility of Parliament as a whole and not just of the MPs who happen to belong to the minority group.” This is a view to which I ascribe, whilst there is a viewpoint that affirmative action is acceptable and that we ought avoid the tyranny of the majority the idea of consociation does more harm than good to furthering the fundamental principle of equality so central to a liberal democracy.

As Philip A. Joseph points out in his working paper, The Maori Seats in Parliament a useful measure is the ratio of Maori representation in Parliament to their size as a demographic in NZ. If when the Maori seats are removed the number of MP’s is equal to or even greater than the proportion of New Zealanders who identify as Maori then the seats are unarguably redundant further reinforcing the the suggestions of the 1986 Royal Commission.

The results of the 2008 election mean that we now have according to the NBR seventeen Maori MPs. Assuming a 122 member Parliament, that’s 14% representation for Maori, who based on 2006 census figures comprise 14% of the NZ population. Meaning that were the seats to be removed Maori would have a 5% representational deficit. However were the seats to be abolished we would be likely to see more parties putting forward Maori candidates and policies in a search for the Maori vote, thus democratically remedying the deficit.

So on what basis do the seats to remain?

All men are supposed to be equal before the law, and there is no particularly attractive argument based in either Tiriti, principles of active protection or equitable fiduciary duties owed by the Crown that establishes separate electoral rights on the basis of ethnicity or “political status”. Initially they were created as an exception to ensure representation because of land title qualifications. Nowadays that distinction no longer remains and separate representation is limited only to Maori, and afforded to no other minority group. We have universal suffrage. One group ought to have no greater and no lesser rights than any other – as would be the case were there to be a singular electoral roll. I do not believe that the seats represent some form of apartheid as some have argued they have worked in the exact opposite sense, ensuring representation (however questionable) where there otherwise would have been none for a large part of our history. The real issue is whether they remain appropriate today under MMP, I for one am doubtful.

Entrenchment?

Entrenching the seats also seems to be an odd stance to take on such a contentious political issue. Manner and form entrenchments, those that deal with procedural matters of constitutional reform are the most likely to to be upheld by the courts. Parliamentary Sovereignty dictates that the House should remain free to debate the substantive issues and this is why it would be a strange step to entrench something as substantive and hotly political as special Maori representation.