Friday, 15 March 2013



14 March 2013
In the artificial sovereignty of Pitcairn Islands known this week as Courtroom 1 of the Auckland High Court, a constitutional challenge against 3 retired New Zealand judges sitting on a Pitcairn Court of Appeal appeal has resulted in the full bench walking the plank.

Three days of legal argument culminated in Justices Bruce Robertson, Andrew McGechan and Judy Potter conceding they lacked jurisdiction to preside as they had not been properly appointed or sworn an oath in accordance with the 2010 Pitcairn Constitution.

Argument will continue in June as to whether the first set of unconstitutional bench appointments of the three judges and another are lawful. The British recently passed retrospective legislation in an attempt to legitimise the judicial appointments, an action being challenged as lacking legal power or effect.

In a concession by appellant Pitcairn Mayor Michael Warren which does not require the 3 foreign judges swear their oaths or conduct court business on Pitcairn soil, Pitcairn Chief Justice (and Manukau District Court Judge) Charles Blackie will preside over the three swearing their judicial oaths today in Courtroom 1, Auckland, in a sitting of the Pitcairn Supreme Court.

The first matter of business will be how the newly sworn judges will deal with the problem of their having presided over days of proceedings and numerous procedural rulings. Senior Counsel for the appellant Tony Ellis (pictured) is expected to motion the court accept the record from the improperly constituted court proceedings as newly made.

Pitcairn, a British colony of 54 inhabitants in the central south Pacific, is ostensibly a constitutional democracy. It is perhaps the only democracy whose government is 100% controlled by foreigners. The bicameral legislature is comprised of the British High Commissioner to New Zealand and the British Foreign Secretary, neither of whom are elected by or accountable to the citizens. The judiciary are New Zealand judges whose Pitcairn appointments are more obscure than the typical New Zealand appointment. Competency never being a hallmark of either, it was still a bit sad to see Mr Ellis giving a lecture to the bench on the Pitcairn Constitution, in circumstances where it appeared none of the judges had read it until very recently.

At the heart of the current appeal in Courtroom 1 is a criminal charge against the Pitcairn Mayor for internet access of child pornography. But this criminal proceeding has been vastly overshadowed by constitutional arguments which are expected to go to the Privy Council in England. Central among them is how a democratic Constitution can be founded upon two one-person legislatures, neither one of whom is elected by the people of Pitcairn.
It is a fight which New Zealand’s premier human rights lawyer is relishing. “How often do you get to argue a violation to the United Nations Charter?” says Mr Ellis.


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