Bob Edlin: Kiwis don’t need a Constitutional Court to crimp our elected law-makers.....

Kiwis don’t need a Constitutional Court to crimp our elected law-makers – we already have judges who do that

Thailand’s Constitutional Court reminds us of how judges can be politically powerful. It has removed Prime Minister Paetongtarn Shinawatra from office, ruling that she “lacks the qualifications and possesses prohibited characteristics” under the Thai constitution.

As the ABC reported, her dismissal flings the country into political instability.

It also highlights the extraordinary power the constitutional court yields in Thailand’s fledgling democracy.

A panel of all-male judges, appointed by the king on the advice of the Senate, can remove a government elected by millions, and can outright ban politicians who enjoy public support.

It is a power that the court has deployed more than a hundred times since its creation in 1997, dissolving both popular and minor political parties, and creating a cycle of instability and disillusionment with democracy among ordinary Thais.

Nothing like that could happen in this country, eh!

We like to think we have a strong democracy in which voters call the shots and Parliament passes the laws.

Then again – maybe not.

Let’s not forget, for example, the NZ First-National coalition agreement which obligated the Government to pass legislation to override a court decision on Māori customary rights to the foreshore and seabed.

That bill is currently before Parliament.

But first, let’s go to Thailand.

Paetongtarn, a member of Thailand’s powerful Shinawatra political family dynasty, became the country’s youngest prime minister in August last year.

The Constitutional Court voted 6-3 to sack her over a leaked phone call to former Cambodian leader Hun Sen, in which she called him “uncle” and disparaged a Thai military commander.

The verdict immediately removed her from the prime minister’s office and dissolved her cabinet.

It’s not the first time the court has over-ridden the electorate and, according to the BBC:

A lot of Thai people are weary, not just of squabbling politicians but of the fact that every time an election delivers a result, it’s ultimately the court that decides who runs the country.

Critics have accused the court of being pro-military and pro-royalist.

Its influence over the country’s politics is strong. Last August, it voted to dissolve the progressive Move Forward Party – the biggest winner of the 2023 election.

The Constitutional Court was created in 1997 to decide on issues like the removal of public officials and political parties

Significant decisions concerning Thailand’s prime ministers in the last 20 years include:

• In 2006, lawmakers submitted a petition to the court calling for Thaksin Shinawatra to be impeached, accusing him of conflict of interest over the sale of his family’s shares in a company. The court rejected the petition; the judges said the petition did not present enough evidence.

• In 2008, Samak Sundaravej, prime minister from the People’s Power Party – an incarnation of Thaksin’s party – was ousted by the court over conflict of interest by accepting nominal fees for hosting television cooking shows.

• In 2014, the court voted to remove prime minister Yingluck Shinawatra, who was accused of abuse of power for transferring her national security chief.

• In 2024, the Constitutional Court removed Srettha Thavisin as prime minister for an ethical breach, after he appointed to his Cabinet a lawmaker who had been jailed for trying to bribe a judge.

New Zealand has no Constitutional Court.

But our judiciary can – and does – make decisions with substantial political implications which challenge the authority of our elected Parliament.
The Supreme Court last week delivered the second of its two-part judgement on the first Marine and Coastal Area Act case to progress its way through to our highest court.

In the initial judgement, released last December, the judges did not interpret the law as Parliament intended, so that only a minority of claims for the coast would succeed. Rather, it declared that “tikanga” or Maori custom should be at the heart of all coastal claim decision-making. The effect is to guarantee tribal control of New Zealand’s coastline.

The second ruling similarly favours Maori by opening up the country’s waterways for tribal claim.

Newsroom in recent days has highlighted another example of a court case which focuses on Parliament’s powers and the extent to which our legislators are or should be crimped by the Treaty of Waitangi:

Judge weighs unprecedented Treaty lifeline for abolished health authority

A High Court case on the dissolution of the Māori Health Authority could have constitutional ramifications for Treaty of Waitangi law

The article deals with “a landmark challenge in the High Court” against the Government’s disestablishment of the Māori Health Authority.

Across three days in the High Court in Wellington this week, lawyers for four Māori health providers and for the Crown have clashed on the process by which the Government disbanded Te Aka Whai Ora. The applicants have asked Judge David Boldt to find the process and the legislation dissolving Te Aka Whai Ora inconsistent with Te Tiriti o Waitangi – a first-of-its-kind measure of legal relief.

On Tuesday morning, Judge Boldt proposed an alternate declaration, saying he might find it easier to issue a declaratory judgment affirming (or not) the correctness of the Waitangi Tribunal’s finding that the disestablishment of Te Aka Whai Ora breached the Treaty of Waitangi.

And if it did breach the Treaty?

What happens then?

Let’s hark back to the 2023 general election campaign.

All three coalition parties campaigned on abolishing the Maori Health Authority, which had been set up in 2022 as part of Labour’s health reforms.

The incoming Luxon Government disestablished it after legislation to fold it into Health NZ and the Ministry of Health was passed through Parliament under urgency in a matter of hours last February.

The Newsroom article draws attention to the sidelining of the Waitangi Tribunal:

The timeline for the abolition of the authority was accelerated early last year, with the effect that it prevented a Waitangi Tribunal hearing into the issue from taking place. The tribunal is not able to consider issues that are live before Parliament.

Ultimately, the tribunal resumed its urgent inquiry into the disestablishment after the legislation had passed through Parliament and in November concluded the act was a breach of the Treaty.

Four Māori health providers have turned to the High Court for further recourse, seeking “a novel form of legal declaration that has never before been applied to the Treaty or Te Tiriti”.

Declarations of inconsistency began with the Bill of Rights Act. In 2015, the High Court found a law that prevented prisoners from voting was inconsistent with the Bill of Rights Act. Although the legislation did not provide for such declarations, it didn’t explicitly bar them either and declarations of inconsistency have since become a more accepted part of case law.

The legal claim filed against the Government and heard this week seeks the same declaration, but under Te Tiriti o Waitangi. Andrew Butler KC, arguing for the Māori health providers, said there was no bar in Te Tiriti on courts awarding remedies for breaches, such as a declaration of inconsistency. In the same way in which the courts have empowered themselves to declare Government actions inconsistent with the Bill of Rights, they should do so with Te Tiriti as well, he said.

Boldt has suggested a remedy, noting that when the Waitangi Tribunal finds a breach of the Treaty has occurred, claimants can approach the Crown to ask whether they accept the findings.

The Crown can

• accept the tribunal’s finding. No further action then would be required;
• ignore the question; or
• reject the breach.

Andrew Butler said the four Maori health providers

… still sought a declaration of inconsistency with Te Tiriti but would also re-plead their case to include this as another form of legal relief they would seek. The Crown also indicated its preference for Judge Boldt’s alternative.

Most significantly, the Newsroom analysis concludes:

Almost regardless of the approach ultimately taken by the judge, a ruling in favour of the applicants could have significant political ramifications.

To some extent, these processes are academic and rhetorical. The Government has already ignored one finding of a treaty breach by the Waitangi Tribunal on this matter.

On the other hand, Government ministers (particularly Shane Jones and David Seymour) have railed against perceived judicial activism.

Newsroom cites the NZ First-National coalition agreement which obligated the Government to pass legislation overriding a court decision on Māori customary rights to the foreshore and seabed and conjectures:

There could be significant pressure on the Government to act in a similar way if the court sides with the applicants in this case. At stake is not just perceptions of the Government’s policy on Te Aka Whai Ora, but a potential wave of future such applications on the range of Government actions that have been deemed Treaty breaches by the Waitangi Tribunal.

And the last thing Luxon needs (the author observes) is another big Treaty debate.

Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE. - where this article was sourced.