The law of rule

If ‘Rule of Law’ is defined as the absence of arbitrary power, then The Rules Committee of New Zealand represents the converse of the rule of law.

The Rules Committee is the gate-keeper for judicial process in New Zealand.  Members are appointed by, and accountable only to, the Chief Justice.  They determine everything from criteria for filing and striking out court claims, to which laws passed by Parliament will be adopted by the judiciary and which laws will not.   The Committee also lobbies for law changes which favour “the fearless performance of judicial function” and unaccountability.  Despite few New Zealanders being aware of its existence, the Rules Committee yields unparalleled arbitrary power over the conduct of New Zealand society.

Not surprisingly, the Rules Committee considers its function is to protect the independence of the New Zealand judiciary from government and public influence.  While judges swear an oath to the Queen, their lobby consider they do not have the legal obligations of other Crown employees.  This includes exempting the Courts from laws passed by Parliament – such as the Public Records Act 2005 – and endorsing wide discretionary powers by judges over court access and procedure.

The Courts of New Zealand website cleverly states of the role and powers of the Rules Committee: “Past experience has been that rules proposed by the committee have been endorsed by Cabinet and made by the Executive Council.”  This obscures the unbridled power and sometimes brut force that the body wields.  Since the loss of the Privy Council, the Rules Committee has lost any checks and balances to its power, as well as grown into a political powerhouse.  The latter is a bit ironic, given their view that the judicial, legislative and executive branches are strictly autonomous, even to the point that the Ministry of Justice has no power over the judiciary.

The force of this political power was demonstrated in the passage of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.  The judges’ forceful submissions on the Judicial Matters Bill were followed by a letter from the Chief Justice which was aimed at preventing the legislature from considering variances from the original legislative draft or mechanisms for disciplining judges short of removal from office (which requires a vote of parliament).

We see the effect of this now in the Judge Bill Wilson scandal.  The final bill effectively gutted the powers of the Commissioner beyond recommending to the Attorney General the formation of an investigative panel.  The statutory body was exempted from the Official Information Act and the Chief Justice was allowed to recommend the Commissioner and appoint judges to any panel which might eventuate.  In the case of Judge Wilson, he is a friend of the Chief Justice and they have shared investments in race horses.  There has been no recommendation to appoint a panel since Judge Wilson was shown to have overturned a ruling for a party represented by his business partner – a partner to whom Wilson was financially indebted.

The two Judicial Conduct Commissioners since enactment have both been senior law partners of New Zealand’s largest law firms.  None of the 500 formal complaints they have received against judges has been referred to the Attorney General for action.  A handful have been referred back to the Head of Bench, where they fell down a black hole.

In one of its last New Zealand decisions (R v Taito [2002]), the Privy Council was scathing in its criticism that the New Zealand Courts were systemically depriving criminal defendants elementary access to due process.  Since those guilty judges (including Sian Elias CJ) successfully replaced the Privy Council and saw themselves appointed to the new Supreme Court, they have been unrelenting in enforcing new rules which prevent jury trials, limit discovery in court proceedings and create discretionary financial barriers which put most civil proceedings beyond the reach of even the middle class.

One local academic has said New Zealanders would like to believe some benevolent dictator free of outside influences can be trusted to act in the best interests of the citizenry – and that this might actually be preferred when it comes to the judiciary.  When questioned as to the practicality, he conceded it is largely an illusion, even if the person bestowed with such power starts out benevolently.

But some think Sian Elias is that person.  Those who do, prefer not to think how her and her husband’s many business and horse racing interests in a country of only 4 million people reconcile with such power.

In every democracy it is ultimately up to the citizenry to prevent the officials of government from falling into error.  None other than Machiavelli, the notorious proponent of the ends of power justifying any means, said; “Men seldom rise from low condition to high rank without employing either force or fraud, unless that rank should be attained either by gift or inheritance”.  In the case of our Supreme Court judges who were so soundly reprimanded by the Privy Council for unlawful conduct as Court of Appeal Judges, it is a fair question for the New Zealand public to ask.  This is particularly so now that they are in their $100 million palace to hear 50 cases a year.