So Helen Clark is a bit put-out by comments from our senior judge, Dame Sian Elias to a House of Representatives select committee. Link. It is difficult to know how justified these criticisms are - it is a rarified area for most of us. However there would presently seem to be quite a lot of stress between the government and the judiciary, which is not beneficial to the smooth running of justice in New Zealand.

I think the government has only itself to blame. The law abolishing the right to appeal to the Privy Council and setting up the Supreme Court (Link) was highly controversial, in particular the fact that this was a major constitutional change, brought through Parliament on the slimmest of majorities, and despite misgivings by much of the legal profession. Helen Clark may well have been annoyed by the prevarication of the opposition parties, who seem to have changed their minds from pro to anti. However whatever the merits or not of this law, it certainly wasn't urgent - we have been coping pretty well for the last one hundred years under the old law. Helen revealed herself then as just an ordinary politician rather that the statesman (stateswoman? statesperson?) she could have been. It would not have been difficult to put this legislation on hold for a few months, to get the agreement from the opposition parties in a bi-partisan way, which I think would have been forthcoming, before proceeding. As it is Helen now has one of the most important institutions in New Zealand getting off to a troubled start, and unnecessary political problems. In addition she has abused Parliament by not ensuring reasonable general support for a contentious constitutional issue. This will come back to haunt Helen when she is on the receiving end of someone else's short-cuts with democracy and, unfortunately, it will come back to haunt the rest of us.

For what it's worth, I am not particularly against a new court to replace the Privy Council - after all we can't be sure how long this court will last in Britain. However I am concerned that there just isn't the depth of legal skill to supply this institution with enough independent legal minds of the highest calibre. The New Zealand legal institution, like many other institutions, can be seen as somewhat incestuous, purely related to the small population of this country. Others, including the legal profession, have suggest that we should use a panel of judges from overseas, eg Canada, the UK, Australia, South Africa, where our common law tradition is similar - to reinforce our local judiciary. (Link) I think not proceeding with this idea was a real missed opportunity. I can't help feeling that this Labour administration's hurry to proceed with this legislation had more to do with the politics of republicanism and nationalism, and the way it was introduced smacks of parochialism and immaturity. Many countries increasingly recognise supra-national authorities, eg the European Court, the International Criminal Court, etc. And in my profession of medicine, we don't just restrict our options to New Zealand practitioners, difficult cases are often a reason for consulting overseas opinion. However nothing is set in concrete for ever, and a future government might be able to make use of overseas expertise. I would go a bit further; for instance, as Britain is in the throes of possible judicial reorganisation, I would like the Commonwealth Heads of Government meeting to consider whether there would be any support for a Commonwealth Court, for all our judiciary's final appeal in certain prescribed instances.

However, much more important than the makeover of our Senior Court - Dame Elias doesn't like the name "Supreme" Court, perhaps she never liked Diana Ross - is an urgent examination of the appeals process to the Court of Appeal. There have been too many cases recently of miscarriages of justice. I am thinking of Peter Ellis, Scott Watson, David Tamahere and others. These cases are a scandal and tinkering with Senior or Supreme courts will not deal with this. I discuss this matter elsewhere.