Forty-two senior lawyers, known as King’s Counsel, have written to the government with a scathing critique of the Treaty Principles Bill. Their letter raises a number of concerns with which I am in full agreement. However, they also make a statement about Parliament’s law-making authority that contains a fundamental and egregious error.
This is not something I say lightly because these are very senior and respected members of the legal profession. They have likely forgotten more law, within their areas of expertise, than I will ever know. But on the topic of Parliament’s authority, there can be no questions.
They assert that it is “uncertain” whether Parliament can legislate in the way the bill proposes, arguing that it is “not for the government of the day to retrospectively and unilaterally reinterpret constitutional treaties.”
This is very significant. The 44 KCs are saying that they are unsure if Parliament is supreme.
Arguments against Parliament’s authority to make law affecting anyone in New Zealand cannot succeed in our courts currently. Parliament’s power to legislate needs to extend to all matters within these islands. No treaty or statute is beyond its reach.
So why would such eminent members of the legal profession make this erroneous claim? Well, there has been a long-standing desire within parts of the legal profession and associated academic fields in which judicial activism and scepticism of parliamentary sovereignty have been quietly cultivated for decades.
Basically the KCs are suggesting that rather than Parliament being supreme, the lawyers should be supreme. They can over-ride Parliament.
The institutions of representative democracy are not infallible. Lawmakers with a mandate from the people will never be immune from the risks of poor legislation or misguided decisions. The same goes for judges, of course.
Parliament carries an important self-correcting mechanism: if lawmakers go too far or lose touch with the public, they risk being voted out. Judges, however, enjoy long or even lifetime appointments, making them immune from the direct accountability that keeps elected leaders in check. This insulation from public opinion is problematic because it enables detachment from the consent of the governed.
Judges should only get to over-ride Parliament, if there is a formal constitution that binds Parliament. However the key thing is that the constitution is amendable by either Parliament or the people – hence is democratic.
The assertion that Judges can over-ride Parliament on the basis of their interpretation of common law is dangerous. It makes Judges unelected lords.
David Farrar runs Curia Market Research, a specialist opinion polling and research agency, and the popular Kiwiblog where this article was sourced. He previously worked in the Parliament for eight years, serving two National Party Prime Ministers and three Opposition Leaders.
4 comments:
David, I in turn disagree with you when you say: “Judges should only get to over-ride Parliament, if there is a formal constitution that binds Parliament. However, the key thing is that the constitution is amendable by either Parliament or the people – hence is democratic.”
If our constitution is amendable by the people we would have a referendum on the Treaty Principles Bill. Instead, Parliament will block us.
We are brainwashed into watching Parliament, the Waitangi Tribunal and the judiciary competing amongst each other for power, or sovereignty. In fact power can only come from We the people and we vest our sovereignty in the Crown in Parliament. If you disagree with that, then tell me where the power does come from.
Actually, reading down the list of KCs involved, I don't find them so impressive at all. They don't know what they are talking about - followers.
David , Please include details of the New Zealnd Constitution.
Not available ? then the KC's are talking sewerage.
The attitude of the legal profession cn be largely predicted by pondering what creates most paid work opportunity for them. Seymour's bill and the interpretation to enable it to apply would have eliminated much scope.
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