James Farmer


Are the independence of the Judiciary and the Rule of Law under threat?

Sunday, October 16, 2011

An opening line, under the headline “Justice not well served, Elias warns” in a report of the Dominion Post the other day caught my eye: “The country’s top judge has taken a veiled swipe at the Government’s justice policies, warning that some Cabinet decisions threaten the ‘fragile’ independence of the judiciary”.   On enquiry, it transpired that the comment related to an academic paper entitled “Fundamentals: a constitutional conversation”, being the Harkness Henry Lecture for 2011 given at the University of Waikato more than a month before the Dominion Post’s report.  If there were battle lines being drawn between the Judiciary and Government, it certainly took some time for that fact to emerge.

In her paper, which I did not know about either, the Chief Justice undertakes a learned and fairly lengthy exposition of the nature of the New Zealand Constitution which she correctly describes as being “largely a common law construct”.  She identifies the twin pillars of the Constitution as the doctrine of parliamentary supremacy (representing the victory of Parliament over the Crown as stated in the Bill of Rights 1688) and the Rule of Law (the custodian of which are the courts acting independently).  Subordinate to both are the powers of the Executive and the many administrative and subordinate governmental bodies which derive those powers almost entirely from Parliament in the case of the former and entirely in the case of the latter.  Maintaining that subordination is the responsibility of the Courts, principally through their powers of judicial review of the legality of executive and administrative action (from which there has arguably been some retreat in recent times – a topic for another time perhaps).

None of this is of course new.  Professor A V Dicey’s famous work, written towards the end of the nineteenth century, focused attention on Parliamentary supremacy and the Rule of Law as being the hallmarks of the “unwritten” Constitution enjoyed (or otherwise) by the United Kingdom.  However, it seems – to me at least – a long time since we have had much of a discussion about the fundamental nature of our Constitution.  The (show pony but rather ineffective) Bill of Rights Act 1990 and the Treaty of Waitangi have grabbed all the attention in recent times.  Both subjects are considered in some detail in the Chief Justice’s paper but I would suggest that it is for the larger (and more important) topic of the inter-relationship between Parliament, the Executive and the Courts that this paper merits a much broader audience than those present at a University evening lecture.

To that extent, the Dominion Post may have done us a favour in publishing the fact of the paper – but only if we take the trouble to go behind the sensation of “Chief Justice delivers swipe at Government” to read it.

A few reactions, if I may, offered with respect:

1.  The Chief Justice has performed a service in pointing out the implications of the fact that we no longer have a Department for Courts to administer the courts with some degree of autonomy from central Government (which had resulted from agitation by the former Chief Justice, Sir Thomas Eichelbaum) - a change which, she says, may break down the administrative and management boundaries between the courts and legal government agencies such as the police, the prison service, legal aid and public defenders with a resulting effect on the independence of the Judiciary and on access to Justice.  She points to the fact that the technology that Judges use for internal communication and in the preparation of Judgments is part of the Ministry system.  And of course the New Zealand Law Society and the New Zealand Bar Association have expressed their concern for some time at the impact of increased Court filing and hearing fees on the principle of access to Justice.

2.  Just as a sour note in all this (so far) accord, however, I would say that the Judiciary itself has not always been beyond introducing reforms in the courts’ processes that, while well meaning, can also have a major impact on the principle of access to Justice.  Along with other barristers, I have long complained of the effect that the reforming zeal of the Rules Committee (dominated by the Judiciary) has had on the costs of litigation.  The transformation of the largely oral nature of judicial proceedings by the mandatory service and reading of written briefs of evidence and the prior filing of written submissions and memoranda before judicial conferences has been taken to extremes that have left many litigants broke before they get to trial.  We also now have a proposal by the Judges, in an otherwise very good paper by Justice Miller on case management that is largely directed to establishing a more effective fixtures system, that parties may be forced to “adapt” by briefing alternative counsel if their originally instructed counsel (of choice) has another fixture at a time that otherwise suits the courts’ management of fixtures.  The costs of that on the litigant should be thought about.

3.  In the concluding section of her paper, the Chief Justice expresses some very lofty and, if I may say so again with respect, idealistic thoughts.  A Constitution, she says, must be a legal expression of shared community values.  Aristotle is quoted: law is “the principal and most perfect branch of ethics”. Then follows a scary thought: “If we do not have common values – public values which set us apart as a nation – then it is hard to see why we would resist the Federation next door” (particularly given the emigration rate, including Maori).  Thus, she ends the paper: “So it is time for a conversation about our own constitution: the responsibilities and limits of its working parts; the rule of law; human rights; and the Treaty of Waitangi; the public values that make us our own nation still”.

4.  In this last respect, it is plain from the paper that the Chief Justice sees the Treaty of Waitangi as a unifying factor.  In this respect, she is able to call in aid statements by Sir Robin Cooke, speaking judicially, and Sir Kenneth Keith and Professor Quentin Baxter, the latter having said that the future of New Zealand as an independent nation is based on the country being a meeting place of two great races whose dealings together, even in times of strife, have always had a “certain grandeur”.  One would certainly like to think that she is right.  But, irrespective of the justice of Treaty settlements, the controversy that surrounds them and other Maori issues such as the foreshore would have to put into serious question the extent to which we have “shared community values” that do in truth underpin our Constitution.

5.  Might I perhaps end this column with the thought that the goal of shared community values needs to go no further than a general acceptance of Dicey’s twin pillars of Parliamentary supremacy and the upholding of the Rule of Law by an Independent Judiciary (supported by an independent legal profession).  That framework should be all we need to sustain our Constitution, irrespective of conflicting values held by different sectors of society. Indeed, a society is that much the healthier for the fact that it does accommodate conflicting social values.


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