Stephen Franks is standing by his attacks on the independence of Chief Justice Sian Elias despite upsetting lawyers and the Attorney-General. He said yesterday that he had agonised over breaking with the long-held convention that politicians do not criticise judges with his stinging criticisms of the Chief Justice over two days in Parliament.
The New Zealand Bar Association president Robert Dobson, QC, said allegations of bias made by someone in a privileged position, knowing judges would not respond, could seriously harm the integrity of the Judiciary.
Mr Franks has twice this week attacked Justice Elias in Parliament for not stepping aside on the critical court case which sparked the seabed and foreshore row.
The Court of Appeal, with Justice Elias heading the bench, ruled in June that Maori should be allowed to test their cases for customary title in court.
Mr Franks said Justice Elias should not have heard the appeal because she had been a long-time and passionate campaigner for Maori claims as a lawyer, and had once lost a court claim for a part of the seabed.
“Of course her presence does not necessarily mean a court was biased, but it is the appearance of bias that matters.”
He also said the case provided an example of the judicial limitations created by New Zealand’s small size and “a reason that it is so valuable to have a right of appeal outside of the smug little group that controls justice in this country”.
He said later he was worried the use of local judges only on the planned new Supreme Court meant it risked becoming activist or political.
Mr Franks and his party oppose the Government’s plans to abolish appeals to the Privy Council and establish a domestic final appeal court consisting of New Zealand judges only.
Under Parliament’s rules, MPs are not allowed to use offensive words about any member of the Judiciary, and can be stopped from doing so by the Speaker.
But convention requires that MPs do not criticise judges to respect constitutional separations between Parliament and the Judiciary.