The privy council in london serves as a court of final appeal for any of the 54 Commonwealth countries that wish to use it. Over the past half-century, 39 countries have given up that right (including Australia, in 1986), and a succession of New Zealand governments have considered joining them. A growing number of New Zealanders share former Privy Councillor Lord Cooke's view that the council is "an anachronism inconsistent with our independent nationhood." But last month, when the Labour government introduced a Supreme Court Bill, abolishing Privy Council appeals, it was attacked from all sides. The center-left New Zealand Herald railed against the government's "stunning abuse of power." There were rowdy scenes in Parliament as conservative parties tried to derail or delay the legislation. Public opinion - never enthusiastic - turned steadily against the bill; by early last week, 79% of New Zealanders wanted a referendum. Citing the lack of public support, the centrist United Future Party, which initially backed the government, changed its mind. On Oct. 14, the bill passed into law with the votes of just 63 of the country's 120 M.P.s.
"We must throw off, once and for all, the fetters of our colonial past," Attorney-General Margaret Wilson told an unruly House. "It is time we stood on our own two feet." New Zealand had the legal wisdom and expertise to run its own highest court, she argued. Did it want to be left behind with nations like Mauritius, the Bahamas, Brunei and Tuvalu? "I don't care one way or the other whether we abandon the Privy Council," says James Allan, associate professor of law at Otago University. The real concern, he says, is what will replace it: a new Supreme Court, whose six judges will be chosen by the Attorney-General. That provision "is just outrageous," says Allan: it is unprecedented for the government of a developed, common-law country to appoint, in one swoop, the entire bench of a court which "has immense power to interpret law, overturn rulings and create new precedent" and from which there is no appeal. "The question is not, Do you want to get rid of the Privy Council?" Allan says. "It's, Do you want Margaret Wilson to pick the highest court?"
Critics say a change this big should not be made without broad political or popular support. The business community - the largest user of the Privy Council - believes "a three-quarters majority vote in Parliament or a general referendum" was needed, says Roger Kerr, executive director of the New Zealand Business Roundtable. Wilson and Prime Minister Helen Clark disagree, saying their minority government already has a mandate. But, says Doug Bailey, a public-law specialist with legal firm Kensington Swan, "by refusing to seek, much less build, a broad consensus and by handling this as a political matter rather than a constitutional one, the government gives the appearance of wanting to influence the make-up of the court. Irrespective of how upright and independent the judges are, the perception has been created that they may well be political appointees." And sympathetic to the government's agenda, says Bill English, leader of the Opposition National Party. The new court "will affect the law for a generation," he says. "Labour is pushing through a range of social changes, and this move has the appearance of being designed to lock in those changes and that approach."
All "hysterics" and "scaremongering," say Labour and its supporters. While the law gives Attorney-General Wilson the last word on the selection of judges, she has said she will follow the recommendations of a panel comprising the Chief Justice, the Solicitor- General and a former Governor-General. But that won't allay critics' concerns, says Otago University's Allan: "Wilson has picked the committee, and we will not be surprised if they give the kind of judges she wants." The government's history of appointments to high office doesn't inspire confidence, says Auckland University law professor Bill Hodge: "Appointments have been made that departed from the choices of expert advisory committees. The selection process has lacked transparency, and one could get the idea that Labour was looking out for its friends, picking people with the appropriate background and attitude."
Critics of the new law - and even some supporters - are urging the government either to promote the entire current Court of Appeal (which will sit below the Supreme Court) or to open up the appointment process. Failing that, says Hodge, "everyone will be alerted to watch very carefully to see that it's above board." Opposition parties have vowed to overturn the law if they win government in 2005. Otago's Allan says they would be within their rights: "Helen Clark has said it is not a constitutional issue. If that's so, then it's not a constitutional issue for anyone. Every government that comes in can create its own court, or fire all the judges." The New Zealand Business Review last week urged Nationals leader English to promise he would set up his own "Super Supreme Court." The court that starts sitting next July will need some super supreme judges if it is to retain the confidence of the nation.