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. When it comes to such matters, the job of the Courts is strictly to interpret constitutions, not re-write them.
Yet that is what NZ's KCs 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 on both sides never referred to such matters, judges over the past years, most of them illiterate in the sense of being unable to speak, read or write Te Reo Māori, so with little sense of the Māori version, have nonetheless been self-declared by their peers as validly inventing & writing a set of Principles. They claim these 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 of pompous puffed-up 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
5 comments:
What an inferior bunch of noddies!
Hmm! Is it possible to suggest to the current Govt. that we need to establish a "Tower of London", where we can place those who are perceived, by Govt., as to having extreme views that are contrary to the Laws of the Land, as, established by the Govt[s] , both past & present. And such "persons, therein incarcerated" will be placed in the hands of the Interrogators to establish Loyal to the Nation they Serve and be subject to the
punishments determined for any Act of Treason, against both the Govt of the day and the Laws of The Land, as promulgated by the Govts past & present.
I do not know why, but as I was typing this, I had this image "of chopping blocks", strange that.
Should we recommend that the KC's "attempt their own Hikoi, to Parliament"??
That isn't completely correct, because the common law has been developed by judges in constitutional matters just as much as in other matters. There shouldn't be a contradiction between developing law and interpreting law because the development is supposed to happen when the law is interpreted in different real life situations that the language in the statutes don't address. By looking at a number of judicial decisions together, and seeing what practically works and what doesn't, you can infer principles from the common reasoning. From that comes the common law. Common law comes from induction rather than deduction.
The problem in NZ is that judges here develop the common law, not by seeing how Parliamentary law works in real life (which is far too difficult) but by just asserting their own political opinions, often overriding Parliament's intentions. The letter from the 44 KCs is evidence of that. The academics love that when it accords with their own political opinions, so activist judges, like Lord Cooke, are put on a pedestal.
I hope this explains the difference between the way the common law was when we had the Privy Council (who frequently overruled our activist judges) and what it's become since - and the reason why appeals to the PC were abolished.
Maybe so anon@1.36, but those KC's should still have pulled their egotistical heads in.
These KCs who are likely aspirants for judicial positions obviously don’t know much. Evidently, they are ignorant of conditions in NZ in the 1800s and that the original draft of the Treaty (probably the Littlewood find) was written in English (there being few Maori who could read or write) and translated word for word as far as possible into the native language. Unfortunately, the later translations back to English did not have the same degree of accuracy.
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