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 Comments by ministers on judges and prosecution decisions

New Zealand Bar Association President Maria Dew KC has commented on recent media regarding Ministers comments on judicial decisions.  Ms Dew has warned that judicial independence is critical in upholding the rule of law, which supports our democracy.  Ms Dew said that the public must be confident that they can come to court and judges will be able to hear their cases without fear or favour.   

“Ministers are in special positions and have a greater media and public platform than members of the general public, so they have to be careful not to, even inadvertently, exert pressure or influence on the judiciary in their comments,” said Ms Dew.  This is why Ministers are subject to the Cabinet Manual, which sets out Ministers obligations when considering comment on judicial decisions.  

Ms Dew noted that “While decisions of the courts and conduct of judges have always been open to discussion and robust debate as part of an open democratic society, Ministers also must be mindful there are good reasons for being measured in comments, as they exercise considerable influence when they speak out as elected representatives.

There is a natural tension in the important constitutional division of power between Parliament, the Executive and the Judiciary.  Constitutionally the Judges' role is to speak through their judgements. They steer clear of the political fray.  “But the converse convention is that Ministers criticism of judges is kept within reasonable limits, so the administration of justice is not adversely impacted,” said Ms Dew. 

The NZBA President also emphasised that prosecution decisions must be made on their merits, free from political interference or any formal or informal contact that may reasonably give the appearance of interference.  “It is very important for our politicians to understand and respect the boundaries that we have that protect that independence for Police,” said Ms Dew.