HAMILTON, New Zealand — New Zealand’s decision last week to dump the United Kingdom-based Privy Council and set up its own court of appeal has been warmly embraced by Jamaica’s attorney-general and minister of justice, A J Nicholson.

In a comment to the Sunday Observer last night, Nicholson said the New Zealand move to drop the Privy Council after such a lengthy association “leaves the independent countries of the Commonwealth Caribbean almost alone in that boat”.

Echoing much of the debate that has taken place in the Caribbean in recent years, New Zealand’s parliament voted to abolish appeals to the Privy Council and is now deciding on its first panel of judges for its new Supreme Court.

Under the new law, New Zealanders will no longer be able to send cases to London from yearend, and the Supreme Court, which will start operating early in the New Year, will begin hearing final appeals next July. With New Zealand’s departure, only the Caribbean and a handful of mostly British dependencies will still have the Privy Council as their court of last resort.

But unlike in the Caribbean, where the selection of judges for the proposed Caribbean Court of Justice (CCJ) will be a complex operation, with myriad institutions having a say on a regional Judicial Services Commission, in New Zealand the last word on the selection of the start-up Bench will rest with the country’s Attorney-General Margaret Wilson. The court will start with six justices.

Wilson will base her decisions on the recommendations of a three-member panel comprising the New Zealand chief justice, Dame Sian Elias, Solicitor-General Terence Arnold and former Governor-General Sir Paul Reeves.

Wilson has assured the New Zealand Parliament that she will follow the advice of the committee, declaring an emphatic “No!” when asked by Richard Worth, the justice spokesman for the main Opposition National Party, whether she might reject their recommendations.

But even that undertaking has not quelled the concerns of some, who, like opponents of the CCJ, have raised fears about the politicisation of the court.

“The thought of the judges of our highest court being chosen by Attorney-General Margaret Wilson, Chief Justice Sian Elias, the Solicitor-General Terence Arnold, QC, whose impartiality is in question, and ex-Anglican prelate and Labour Party camp-follower Paul Reeves, gives me the heebie-jeebies,” wrote New Zealand Herald’s Garth George, in an October 16 column.

Indeed, Bailey’s sentiment was mirrored, although less tartly, in a recent Herald editorial.

“The court starts under a cloud of suspicion that it will be stacked with judges of Labour’s persuasion, particularly on social policy and employment issues and is designed to entrench those views and values once this Government (Prime Minister Helen Clark’s Labour Party administration) is out of office,” said the Herald.

However, Prime Minister Clark has stressed that the court will be staffed by New Zealand’s most senior judges “with no consideration whatsoever to politics”. The choice will have “everything to do with distinction and merit”.

Such undertakings, though, have led to fears that the Court of Appeal will be culled of the top judges to sit on the Supreme Court, where the work-load will be much lighter.

“Those Court of Appeal judges who are advanced to the new court will move from being workhorses to show ponies,” National Party’s Worth claimed last week.

Wilson, however, has said that she was not worried that the Court of Appeal will be left lacking in talent.

Wilson’s spokespersons have pointed out that there were 36 High Court judges from whom promotion can be made to the Court of Appeal. Wilson has confidence in all these judges, her spokespersons have said.

The process for the selection of judges, however, is not the only matter that has stirred opposition to the New Zealand court.

There are those in New Zealand, for instance, who doubt that the country has the political maturity so that people can be assured that governments will play by the rules and the accepted norms of liberal democracy.

Doug Bailey, another Herald commentator, argued for instance, that the new court appeared to be part of Labour’s republican agenda, but that Clark had failed to place “all the cards on the table”.

It was this more than anything else, he argued, that underlays opposition to the Supreme Court Bill, which Labour passed in Parliament with 63 votes in favour and 53 against.

“This and Wilson’s demonstrated unwillingness to seek, much less build, a consensus, have only reinforced concern that the Government’s motivations have less to do with an expression of national maturity than a desire to put a political thumb on the scales of New Zealand’s constitutional structure,” Bailey wrote.

He added: “Out of this comes a basic question. It has little to do with judicial competence, or the nature of our vestigial relationship with Blighty. Rather, it’s whether we are mature enough to manage our own legal frameworks.

“That’s a question of confidence. It’s whether we can trust that our politicians will be able to restrain themselves from meddling in the make-up and decision-making of our highest court to get the results they would find convenient.

“It’s whether we can be sure that reformist zeal or ideology will take a place second to the fundamentals of western liberal democracy.

“Sadly, the track record tells us that we cannot.”

At another level, many of the indigenous Maori people are concerned about the implication of the court for the Treaty of Waitangi, the 1840 agreement between the Maori chief and white settlers that allowed the settlers land while respecting the Maoris access to land and its resources.

In recent years, the Maoris have increasingly sought to exercise such rights, but fear that the withdrawal from the Privy Council will mean a rapid move to Republican status. The upshot, they fear, will be the undermining of the Waitangi Treaty.

That treaty, signed in 1840 between the British and local Maori chiefs, was to ensure the peaceful settlement of the Pakeha (white population) and to hand over access to the land and its resources to the indigenous Maori population. New Zealand’s efforts to break ties with the Privy Council and to establish a Republic will eventually nullify the Treaty of Waitangi.

But Maori members of the Labour government have supported the court.

John Tamihere, associate Maori affairs minister, gave impassioned support for the bill during parliamentary debate on the court, responding to John Peters of the anti-immigration New Zealand First party. Peters had said that Labour’s Maori MPs were ignoring the views of their constituents.

“This particular court is about access for Kiwis to the highest court in the land,” Tamihere said. “Our people have to wake up that we can no longer be dependent on traditions 12,000 miles away. We have to understand our own mana (Maori belief of pervasive supernatural power) for a change, rather than being suffocated.”

Prime Minister Clark, who rejected Opposition and some private sector demands for a referendum on the matter, characterised the decision to leave the Privy Council as a sort of coming or maturing of New Zealand.

“It is time for New Zealand’s judicial system to come of age and take responsibility for its own courts,” she said.

Like in the Caribbean where governments have similarly chided some critics of the CCJ for their flip-flop on the proposed final court, Clark had made much that the idea of the New Zealand Supreme Court has been on the table for 20 years.

Last week’s decision has been a long and considered one, involving a process that gave interested parties ample opportunity to have their say.

“Petty politics is now involved” with the constant shifting of support by MPs who previously endorsed the court and the Bill for its establishment, she said.

“A shifting of the top level of the court system in New Zealand, not an abolition of a right of appeal,” she explained last week. “It is an expression of confidence in our judiciary’s ability to do the job for our independent and sovereign country in the 21st century.”

Clark has won the support of many in the judiciary, including Ted Thomas QC, a retired judge of the Court of Appeal, who has also served on the Privy Council. He was against a referendum on the court.

The new court, Justice Thomas argued, will be made up of judges of intelligence and integrity who “deserve the confidence of the public”.

“That confidence will be put at risk by further desperate bids for an unprecedented, costly and unwarranted referendum,” he said.

At a press conference last week at which she drew attention to the Caribbean’s decision to withdraw from the Privy Council, Prime Minister Clark made a point often made by Caribbean leaders about their own philosophy behind the CCJ.

Said Clark: “The new Supreme Court will improve access to justice for all New Zealanders. It will be easier for ordinary people to pursue their legal rights at the highest level. Nobody will have to pay the steep cost of a lawyer travelling to the other side of the world to represent them at our highest appellate court.”

— Reported by Hume Johnson