Now, the post title may be a bit unfair to Simon Power – I actually think he is one of the more intelligent members of the Cabinet – but his response to Chief Justice Sian Elias’ speech today indicates a complete lack of understanding of the respective roles of the Judiciary and the Executive. Maybe he is constrained politically by the likes of David Garrett. Who knows. But I would have expected better of him than this:
Chief Justice Sian Elias quoted from a speech today:
The country’s top judge is suggesting giving some prisoners an amnesty as a way of relieving prison overcrowding, but the Government has ruled out the idea.
Chief Justice Dame Sian Elias sparked the debate in a speech where she said the controversial idea should be considered.
“We need to look at direct tools to manage the prison population if overcrowding is not to cause significant safety and human rights issues.”
Dame Sian pointed to the system working in other countries to prevent overcrowding.
“Such solutions will not please many. . . but the alternatives and the cost of overcrowding need to be weighed.”
She also criticised the denial of bail and parole to inmates – an area the Government is considering tightening further.
“I question whether that strategy can reasonably be maintained,” she said.
Justice Minister Simon Power reponded bluntly:
This is not government policy. The Government was elected to set sentencing policy, judges are appointed to apply it.
Now, Simon, that is the way of thinking that leads to autocratic rule. The three wings of Government – the Legislature, the Executive, and the Judiciary – must maintain independence from each other (one of the good things about MMP is that it has helped the forst two of these to do so).
Each have a role to play, and must play it without subjugation to any of the others. The Judiciary (ie Judges), through the operation of the Common Law, “make law” all the time. So does the Legislature (ie Parliament) “make law” by passing legislation.
But, apart from subordinate legislation, made by Order in Council or Ministerial Direction under empowering legislation, the Executive, of which Simon Power is a member as a Minsiter) does not make law.
That is where Simon Power has crossed the line. A Cabinet Minister implying the Chief Justice should butt out of an important debate on judicial issues is not a good look.
And, as a Judge who has had to sentence people herself, and hear appeals against sentences, I suspect she has a much better grasp of the reality of the justice system than someone who was a rather junior lawyer before becoming a Member of Parliament and who has now been elevated to the position of Minsiter of Justice.