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The Independent
(NZ Business Weekly)
April 9 2003
Govt plans another constitutional change - in secret
by Jenni McManus
As it prepares legislation to scrap the Privy Council and establish a court
of final appeal in New Zealand, the government is planning yet another
fundamental constitutional change.
Moves are afoot to alter the way in which the royal prerogative operates -
specifically, the prerogative relating to the power of Governor-General Dame
Silvia Cartwright to pardon those convicted of criminal offences, or to order
matters back to the Court of Appeal for a rehearing.
As with the government's move to abolish the Privy Council, those close to
the issue say the public is unlikely to get the chance to vote on the planned
changes, despite their constitutional importance.
At present, the Governor-General, acting on the advice of her ministers, can
issue a pardon without reference to the courts if the government believes
this is warranted, as happened with Arthur Allan Thomas - the man convicted
in the early 1970s of murdering Jeanette and Harvey Crew on their Pukekawa
farm in 1970. Alternatively, the matter can be referred back to the Court of
Appeal under the Crimes Act, as happened recently with Peter Ellis, David
Dougherty and David Bain.
The government's legwork is done by senior Justice Department officials, who
make recommendations to their minister.
What's proposed is a system where a committee including a retired judge and
two "prominent members of society" make the recommendations. The
proposal has been set out in a report prepared by Neville Trendle, the legal
adviser to Police national headquarters.
But Joe Karam, who for nearly eight years has been the driving force behind
moves to overturn David Bain's conviction for murdering his family, says
while there's a real need for change, the proposals do not go far enough.
Preferable, he says, would be the system set up in Britain after "various
miscarriages of justice" in the 1980s where an independent board,
responsible to the Home Secretary, heads a team of about 100 investigators
with statutory powers equivalent to those of the police.
"We need this here. Otherwise I'm afraid we'll end up with a toothless
tiger," Karam said.
At present, Karam says, the Justice Department officials do not do full-scale
investigations; nor is it proposed that the new committee will have
investigatory powers. As Karam sees it, this means they will not necessarily
get to the truth.
"At the moment, they just write to the parties and get a response. They
don't determine the issues. If the petitioner is innocent, it means there is
something seriously wrong with the system. If that happens the parties will
always try to deny it," he says.
"There has often been so much claim and counter-claim over so many years
that probably the only way to unmuddy the waters is to put people on the
stand and examine them under oath. The key thing is to have the power to get
to the bottom of matters of fact."
According to the Trendle's paper, applications under this part of the royal
prerogative are increasing. "So a more robust and transparent process is
needed," Karam says.
The royal prerogative - what remains of the power of the king under the
medieval constitution - is a bundle of miscellaneous rights or powers
exercised by the executive arm of government.
It includes the prerogative to declare war and control the disposition of the
armed forces, the prerogative to confer honours, to enter into treaties and
to take emergency action at times of civil strife.
Along with the power to pardon, the prerogative of mercy includes the power
to grant a respite in executing a sentence and the power to remit a sentence
or penalty.
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