The Minister of Justice’s commitment to deleting reference to rule of law and parliamentary sovereignty from courts legislation is mystifying.
Curious developments are afoot in relation to the updating of New Zealand’s courts’ legislation. What should have been a non-controversial implementation of a Law Commission report on the Judicature Act 1908 has sparked a welcome debate about constitutional fundamentals.
Why? Because for reasons unexplained by the Justice Select Committee which reported on the Judicature Modernisation Bill, a commitment to the rule of law and parliamentary sovereignty, previously found in the Supreme Court Act 2003, has been dropped.
This move came from the Executive. No submitters on the reform asked for this to be done, quite the opposite. Furthermore, Sir John McGrath in his retirement sitting in early March took time out to note his concern at the move.
Since then the Minister of Justice has been anxious to justify backtracking in respect of New Zealand’s constitutional evolution by suggesting that the dropped commitments were constitutional (they are), and should therefore be included in the Constitution Act 1986 (which would make sense). She has not, though, offered amendments to that Act. So, we have the curious stance that the provisions are so important that they need to be dropped; but with nothing more to be done.
Of the world’s democracies New Zealand’s is one of the oldest, strongest, and most flexible. Only the United Kingdom and Israel come close in lacking comprehensive, entrenched, constitutional documents setting out of the rules of the national game.
Israel, though, has protected basic laws; and the United Kingdom has a two chamber legislature, and beyond that is signed up to the principles of the European Union and European Convention on Human Rights. New Zealand has a single, all powerful, 120-seat legislature which is relatively easily managed by the Executive, even under MMP.
The leading value of the New Zealand constitution has been representative democracy. Other strands have come in – a commitment to the Treaty, respect for the rule of law – but only the continued existence of regular free elections has ever been thought worth special protection.
Since the Electoral Act 1956 statutory provisions relating to elections have been semi-entrenched, requiring a 75% majority or referendum approval before they can be amended.
NZ’s lower rating
While New Zealand scores well for its commitment to democracy, it rates much lower for its understanding of and commitment to the rule of law and an independent judiciary.
In a 2007 article on New Zealand’s constitutional culture, Dr Matthew Palmer, now at Thorndon Chambers, but before that Dean of Law at Victoria, and then Deputy Solicitor-General with responsibility for public law matters, wrote that he was “not confident that New Zealanders currently understand the rule of law or, in a crunch, would necessarily stand by it as a fundamental constitutional norm”, and, even more worryingly, that “the rule of law is a vulnerable constitutional norm in New Zealand”.
Dr Palmer’s concerns are not the overheated paranoia of some of the more florid commentators on the Judicature Modernisation Bill.
They are the considered analysis by one of our leading public lawyers, and someone who has worked at the heart of government.
The 2003 move to reference for the first time an explicit commitment to the rule of law (alongside the already well protected principle of parliamentary sovereignty) was a small, but significant addition to our constitutional fabric. Sir John McGrath calls the 2003 wording, “elegant”.
The Executive’s commitment, led on by the Minister of Justice, to expunging that elegant compromise is mystifying. The more the case is made for dropping the commitment, the more even moderate commentators will start to look askance at the development and wonder at the Minister’s motivation.
Dr Richard Cornes, @CornesLawNZUK, an expatriate Kiwi lawyer, is a Visiting Fellow at Otago University’s Centre for Legal Issues and senior lecturer at Essex University in the United Kingdom.