Tuesday, 1 January 2008
by Nandor Tanczos from NZ Herald 1 April 2005 There is no doubt New Zealand is undergoing a process of constitutional change. Unusually, it’s not being forged in the fires of civil war, insurrection or coup d’etat, so we have the luxury of taking a more measured approach than some other nations. Our process of constitutional change is incremental, but not without tension. Our structures and processes of decision-making are altering inexorably, the forms and institutions of the state evolving, and symbols of authority that people hold dear are under question. People have an enormous emotional investment in their relationship to the flag, our head of state and our national anthem. However, when access to resources, privilege and decision-making is threatened, tensions come to the fore. Thus, it was no surprise to see some politicians once again turning to attack "activist" and "hero" judges. In a world where the sovereignty of the nation-state is becoming an increasingly tenuous concept with the advent of multinational agreements on trade, investment, intellectual property and the like, some parliamentarians are apt to get touchy about their remaining powers. In New Zealand, the repatriation of our final court of appeal has also inevitably highlighted tension. While the Privy Council remained our final court, inaccessible, distant and uninterested in the legal affairs of the South Pacific, tension between the Government and the courts was rare or largely unnoticed. A live Supreme Court, authoritative and assertively independent, is quite a different story. So we have seen sharp public debate around the parameters of judicial activity and Parliament's legislative ability. Yet, it would be mistaken to see this as a fight between judges and politicians. There are judges who strongly assert the supremacy of Parliament. There are parliamentarians, like myself, who see the judiciary as a basic protection for ordinary people against the arbitrary power of the state. What released Ahmed Zaoui from prison is not that we are a democratic country but that we uphold the rule of law. As Philip Joseph has said, "majoritarian rule can be as tyrannical as any totalitarian regime if it is not tethered to liberal ideas of tolerance, freedom and respect for human dignity". Those of us who dispute absolute parliamentary supremacy do not thereby assert judicial supremacy. While the argument that judges are unelected and, therefore, inferior in function to politicians is absurd, it clearly is true that their functions are different and claim legitimacy from different sources. The question is not who is top dog but how do we maintain a dynamic and healthy collaboration between the judicial and the political branches of government? The ongoing dialogue between the courts and the Government on the foreshore and seabed is illustrative. The Foreshore and Seabed Act was passed because the Government did not like a finding of the Court of Appeal that the Maori Land Court had jurisdiction to hear a case contesting ownership of some foreshore and seabed. Government ministers have since expressed concern because the Chief Judge has agreed to hear a claim asserting customary rights based on rangatiratanga and kaitiakitanga under the act. Parliament continues to assert its right to legislate and to access the courts, while judges continue to interpret and apply. Neither is a subordinate role. Yes, judges are unelected, which simply means their accountability is to the law in its fullest sense rather than to Parliament or voters. In a colonised country such as New Zealand, with a majority settler population, the tension between votes and rights is highly charged. The assertion that Parliament is sovereign because the majoritarian mandate is the highest form of legitimacy serves the interests of the Pakeha majority but does not tell the full story. The legitimacy of the parliamentary system has its origin not in the democratic mandate but in a genuine social contract. It was the Treaty of Waitangi, an agreement between two sovereign peoples, that provided the basis for Pakeha settlement and government in this country. It scarcely seems conceivable that the foundation of constitutional legitimacy can act as no enforceable constraint on Parliament. Yet the one thing the foreshore and seabed legislation showed most clearly was the lack of any real constitutional protection for Maori. It was a modern-day confiscation, breaching the Treaty of Waitangi, overturning common-law rights, and enacted in the face of enormous opposition. I suspect that if a more collaborative view of power was held by members of the executive towards the judiciary, Maori and the public, a far better outcome would have been achieved. It may be that ditching our monolithic and centralised view of power is our most important constitutional goal.