Submission on the Judicature Modernisation Bill to the Justice & Electoral Committee of the New Zealand Parliament

Abstract

New Zealand might be said to have a constitutional system based on two branches: the elected (comprising the legislature, and executive drawn from it), and the judicial. These are the twin pillars of our constitution. As desirable as the introduction of a proportional electoral system (MMP) was (and is), it has left New Zealand’s constitutional arrangements unbalanced, with the continued existence of a truly independent judiciary exercising judicial power insufficiently protected.

The new electoral system has ended the "unbridled" power previously enjoyed by the executive. It has also though significantly enhanced the confidence of all in the elected branch, whether in government or not, to speak for the desires of New Zealand voters as expressed every three years at the ballot box.

New Zealanders also have interests which go beyond, and are deeper than, those which light up daily partisan political debate. They include our commitment to democracy, the rule of law and human rights and the principles of the Treaty of Waitangi. An independent and impartial judiciary is an essential partner with the elected branch in the protection of these interests.

As the law stands the judicial branch in New Zealand, while respected, is not constitutionally protected to the same level as the elected branch. Better protecting the exercise of judicial power by an independent judiciary is unfinished business from the electoral reform process of the 1990s which led to the introduction of MMP.

This submission opens with a suggested new part to better protect the continued existence of an independent judicial branch in New Zealand, before turning to other matters dealt with in the Judicature Modernisation Bill.

A supplement for this paper is available at: http://ssrn.com/abstract=2412870

Keywords: New Zealand, judicial, judicial independence, entrenchment, courts