Wednesday, September 15, 2004
Parliament - not judges - is sovereign
There's been an unusual amount of back-chat between judges and politicians lately, with charges that each side is overstepping the mark. NZ Herald columnist Tapu Misa claims that the various criticisms the Government has made of the judiciary over the past few months are in breach of Cabinet rules and are, hence, unjustifiable.
Auckland lawyer Richard Ekin responds that while one of the foundations of judicial independence is the convention that politicians, especially ministers, should not criticise a judge's performance or seek to undermine him or her in public, Deputy PM Michael Cullen has not acted inappropriately and irresponsibly in his recent public comments.
Writing in the New Zealand Law Journal, Dr Cullen had responded to a speech by the Chief Justice (Dame Sean Elias) in which she had argued that as a matter of law, Parliament was not sovereign. The Chief Justice asserted that parliamentary sovereignty was an unattractive and antiquated, and hence false, understanding of our constitution.
Dr Cullen criticised the Chief Justice's claim on the grounds that parliamentary sovereignty was the law of the land, which judges had no authority to change, and that it was, furthermore, a good rule that underpinned our democracy.
Ekin says this public criticism was justifiable for two reasons. First, the Chief Justice's comments were made in a public speech at a conference, rather than in a judicial decision. Second, even if the Chief Justice had made her remarks in the course of a decision, it would still have been appropriate for politicians to respond. In fact, it would have been necessary that they do so. The reason for this is that the Chief Justice's remarks were extremely radical. If she had purported to decide a case on the basis that, as a matter of law, Parliament is not sovereign, she would have been guilty of attempting to initiate a constitutional revolution.
"New Zealand's legal system is based on the Westminster model, the central tenet of which is that Parliament may make any law whatsoever. The rule dates back to medieval views about the sovereignty of the king and was decisively settled by the British revolutions of the 17th century. Judges did not make the rule and they have no authority to change it. The alternative to parliamentary sovereignty is that judges have the final say on what the law shall be, not Parliament."
There's been an unusual amount of back-chat between judges and politicians lately, with charges that each side is overstepping the mark. NZ Herald columnist Tapu Misa claims that the various criticisms the Government has made of the judiciary over the past few months are in breach of Cabinet rules and are, hence, unjustifiable.
Auckland lawyer Richard Ekin responds that while one of the foundations of judicial independence is the convention that politicians, especially ministers, should not criticise a judge's performance or seek to undermine him or her in public, Deputy PM Michael Cullen has not acted inappropriately and irresponsibly in his recent public comments.
Writing in the New Zealand Law Journal, Dr Cullen had responded to a speech by the Chief Justice (Dame Sean Elias) in which she had argued that as a matter of law, Parliament was not sovereign. The Chief Justice asserted that parliamentary sovereignty was an unattractive and antiquated, and hence false, understanding of our constitution.
Dr Cullen criticised the Chief Justice's claim on the grounds that parliamentary sovereignty was the law of the land, which judges had no authority to change, and that it was, furthermore, a good rule that underpinned our democracy.
Ekin says this public criticism was justifiable for two reasons. First, the Chief Justice's comments were made in a public speech at a conference, rather than in a judicial decision. Second, even if the Chief Justice had made her remarks in the course of a decision, it would still have been appropriate for politicians to respond. In fact, it would have been necessary that they do so. The reason for this is that the Chief Justice's remarks were extremely radical. If she had purported to decide a case on the basis that, as a matter of law, Parliament is not sovereign, she would have been guilty of attempting to initiate a constitutional revolution.
"New Zealand's legal system is based on the Westminster model, the central tenet of which is that Parliament may make any law whatsoever. The rule dates back to medieval views about the sovereignty of the king and was decisively settled by the British revolutions of the 17th century. Judges did not make the rule and they have no authority to change it. The alternative to parliamentary sovereignty is that judges have the final say on what the law shall be, not Parliament."
