David Round: Thoughts for our Time - Article 8

In 1927 a French philosopher and novelist, Julien Benda, wrote a book called La Trahison des Clercs ~ The Treason of the Intellectuals. (Clerc, which gives us our words clerk and clergy, meant originally a clergyman, then any literate man.) Nothing is free, and we support our ‘intellectual’ class not because we love them but because they too have contributions to make to the public good. They are not ‘irresponsible’. We expect them to uphold civilised and rational values against their, and our, enemies. Yet all too often, Benda lamented, the intellectuals, while still demanding their generous salaries and privileged positions, pursued their own crazy and pernicious ideas. They betray the public good.

Christopher Lasch, in his 1995 book The Revolt of the Elites, brought Benda’s observations up to date. We are very definitely ruled now by a ‘meritocratic’ class (not that being born with any particular sort of brain could be said to be a matter of merit) which has most of the defects of the old aristocracies without any of their virtues. The meritocrats have a strong sense of their own value and indispensability, but little sense of obligation to their own people. They are increasingly rootless world citizens, far removed from the preoccupations of ordinary folk. They are more concerned with global issues, and with ‘human rights’ and ‘identity politics’ ~ all of which are capable of simplistic and stupid answers ~ than with boring petty things like unemployment, taxation burdens, crime rates and national decline. They are not patriots. They do not care about us.

They are not all rich. Yet they fix the terms of national debate. ‘Journalists’, for example, may not be rich ~ although they are often lazy ~ but they are the ones who decide that this particular action or statement by someone receives headline attention, while a hundred other equally deserving actions receive no attention at all. In administrative decisions far from Parliament a faceless bureaucrat may ‘prioritise’ Treaty principles, say, and significantly alter the country’s future.

Nothing is free in this life. There is a Spanish proverb ~ “Take what you want”, says God. “Take what you want ~ only pay for it.” Even the best things ~ especially the best things ~ come at a cost.

Take, for example, that very good thing ~ the ‘separation of powers’. Every law student learns about this very early on in his or her studies ~ the idea that ‘government’ involves the exercise of different sorts of powers ~ making laws, applying laws and interpreting laws ~ and that for the sake of liberty it is important that no one organ of government exercise more than one sort of power. In particular, it is important that the law-interpreting power, exercised by judges, not be interfered with by politicians. Judicial independence is absolutely vital to good government.

No-one could disagree. Unfortunately lawyers and judges all too often forget that this good thing, like other good things, comes at a price. Yes, it is important that politicians do not interfere with judging. The price to be paid for that, however, is that judges should not involve themselves in politicking. Our judges are forgetting this. They are becoming increasingly willing to dabble in high matters of state where they have no business to be. This is not just happening in the rarefied atmosphere of the Supreme Court. A District Court judge recently decided to return a gang patch to a gang member after that patch had been forfeited to the Crown, because, he ingenuously explained, the same Act of Parliament gave the court a discretion as to where to send the forfeited patch, and so it was quite all right to give it back to the man who had just forfeited it. It is very difficult to regard that decision as anything but a gigantic fingers from a would-be cultural commissar to the elected parliament and the electors of New Zealand, from someone who thinks he knows a lot better than we do.

I do not think we want our judiciary politicised in this way. We may sneer at the American practice of grilling potential presidentially-appointed judges about their politics, but it is actually perfectly reasonable. The American Supreme Court has the very last word about whether any American legislation is ‘constitutional’; it can strike down any law made by Congress if it really wants to. It is a court of politicians, where the general political attitudes of the judges are very important. That being so, it is perfectly reasonable to check on their political sympathies before they are ever appointed.

Do we want that here? I am afraid we may be too late. Ever since the well-meaning stupidity of the 1987 Maori Landsdecision, which launched the ‘principles’ of the Treaty, including of course ‘partnership’, on their merry way, judges have fallen over themselves to make political judgments in order to hand over public assets to their preferred racial minority. There were very good legal arguments why that case should have been decided the other way. There were very good arguments why the Court of Appeal in the Ngati Apa case, which re-introduced Maori rights to claim the foreshore and seabed, should have done no such thing but should have stuck to long- and well-established law. Judicial interpretation since then of National’s foreshore and seabed law ~ holding that ‘exclusive’ does not actually mean ‘exclusive’ at all ~ has been nothing less than an open defiance of Parliament’s clear intention.

It is the judges who, more than anyone else, have brought our race relations to the evil stage where they now threaten to disrupt our country very seriously. They invented ‘partnership’. The Ngati Apa decision and its aftermath were the catalyst for the appearance of the Maori Party.

It is not just in relation to the Treaty that these overpaid mischief-makers think they know better than everyone else. Their ‘interpretation’ of the three strikes legislation in the Fitzgerald case was another deliberate refusal to do what Parliament had very clearly told them to do. Such people are not fit to hold judicial office.

Just who do they think they are? They are public servants. A particular specialised sort of public servant, certainly, but still public servants They are very generously remunerated. The taxpayer pays a humble District Court judge $393,700 a year; ordinary High Court judges get $518,000, and the Chief Justice receives a cool $614,400. There are also very generous perks, as well as an extremely generous retirement scheme ~ and, of course the enforced adulation of the legal profession. (Lawyers are compelled by the ‘ethics of the profession’ never to say anything unkind about the judges.) Many years ago these very generous salaries were justified by the need to discourage judges from taking bribes. There are now other ways of keeping an eye on corruption. Indeed, it seems that the high salaries themselves may have induced a certain spiritual corruption, inducing some judges now to see themselves as God’s gift to an ignorant and bigoted country. Self-praise, however, is no recommendation. In any other situation anyone who seriously proposed that the country would be better off being run by a handful of very rich and successful lawyers ~ the racehorse-owning classes ~ would be laughed to scorn. Yet we take seriously a Supreme Court judge who announces that the Rule of Law ~ which, of course, we are all in favour of ~ will not be secure in this country until the process of decolonisation is complete!

For unelected judges to announce that they, and not Parliament, are in charge of our laws, is as much a coup d’etat against our established legal order as if armed men were to enter Parliament and drive the members out at gunpoint. It is a legal and constitutional outrage. It is nothing short of a public scandal. It is contrary to all our traditions, as well as contrary to the judicial oath of office, where judges swear to ‘do right to all manner of people after the laws and usages of New Zealand...’ There is nothing in there about them making new law.

Parliament must be in charge. Judges must fulfil their duties to their oaths and their lawfully constituted community. The alternative is an unaccountable judicial tyranny.

To be continued…

David Round, a sixth generation South Islander and committed conservationist, is an author, a constitutional and Treaty expert, and a former law lecturer at the University of Canterbury.