Professor Robert MacCulloch: NZ's King's Counsels Don't Know Constitutional Law

In a letter addressed to the PM regarding ACT's Treaty Principles Bill, NZ King’s Counsels succeeded in one respect. They showed they don't know constitutional law. Yes, there's the common law, developed through decisions of judges, rather than statute. But when it comes to constitutional matters, the job of Courts is to interpret constitutions, not re-write them. Yet that is what NZ's Kings Counsels have advocated.

Although the word "principles" never appeared in the Treaty, nor was defined by Parliament, the Counsels assert the Courts constitute the only authority in NZ with powers to make them up. Even though the Treaty signatories, Māori & non-Māori, never referred to such matters, judges over the past few decades, most of them illiterate in the sense of being unable to speak, read, or write Te Reo Māori, so couldn't make sense of the Māori version of the Treaty, have nevertheless been self-declared by their own peers as validly inventing & writing a set of Principles. They claim they now form a significant chunk of our Constitution.

Extraordinarily, the Kings Counsels assert that NZ governments, like the one Seymour co-leads, lack authority to "rewrite" any Treaty Principles, since, they argue, that constitutes rewriting the Treaty. But those same Counsels are perfectly content with the Courts having those same powers. They argue our Courts, entirely independently of the Treaty signatories, have already "developed" their own set of Principles, which now "represent settled law". That assertion is far more insulting to Māori than to non-Māori. At least the Treaty was a jointly signed document - but the Principles were written down over a century later by a group of Anglophile NZ judges, with British educated legal minds. Take one of them, Lord Robin Cooke. His eulogy reads, "Lord Cooke was entirely at home at Westminster in the House of Lords, in Cambridge or Oxford, at Inner Temple and in the members' pavilion at Lords .. he was a monarchist, counting it a privilege to be one of Her Majesty's judges".

Are these my views? Not really. I'd argue they were much closer to those of one of ACT Leader David Seymour' most vociferous critics, Treaty scholar, Dame Anne Salmond. She declares, "What do the relationships forged in 1840 mean for contemporary constitutional arrangements in NZ? That’s the puzzle at the heart of Te Tiriti". However, it appears that for New Zealand's Kings Counsels there is no such puzzle. They have already "settled" the matter in law. How ironic for a group a pompous lawyers bearing the title "King" to lecture Parliament and the people, telling us how they've got it all sorted; how the courts have already written our Constitution all by their little selves.

Sources:
https://www.chrislynchmedia.com/news-items/kings-counsel-call-on-government-to-withdraw-proposed-treaty-principles-bill-citing-constitutional-concerns/
https://www.msn.com/en-nz/news/national/anne-salmond-iwi-kiwi-and-te-tiriti/ar-AA1sVAMR

Professor Robert MacCulloch holds the Matthew S. Abel Chair of Macroeconomics at Auckland University. He has previously worked at the Reserve Bank, Oxford University, and the London School of Economics. He runs the blog Down to Earth Kiwi from where this article was sourced.