Parliament and the Courts

The Australasian Study of Parliament Group had a seminar in the Beehive on Wednesday on the issue of Parliament and the Courts.

The first speaker was Professor Philip Joseph, who is widely considered the leading constitutional scholar in New Zealand.

Professor Joseph discussed the issue of parliamentary sovereignty and whether or not it exists or is absolute.  There were references to musings from Lord Cooke and Chief Justice Elias that such sovereignty is not absolute.

This does not mean that the judiciary is sovereign either. In fact the theme pushed was neither institution was sovereign, and there is mutual respect for the roles of each, with boundaries between them.

There was a suggestion you could call this co-sovereignty, looking at it being the Crown through her Parliament and the Crown through her Courts being co-sovereign, but sovereignty tends not to be shared (the Roman Republic did effectively share it through having two Consuls but that didn’t work too well eventually).

The example by CJ Elias was whether the judiciary would uphold a law that (for example) said all blue eyed babies must be killed.  Of course that would never be passed (and if it was, the Governor-General might not assent to it) so it is an academic argument.

Professor Joseph said that the rule of law does exist outside of legislation and that it pre-dates the concept of parliament sovereignty by many hundreds of years.

An example would be in countries that have had a coup. Often the judiciary will adopt or refer to the doctrine of necessity to maintain the rule of law – even without legislative backing.

The second speaker was Labour MP Charles Chauvel, in his role as Chairman of the Privileges Committee. He had some interesting historical facts such as how Magistrates were not seen as Independent Judges until just a few decades ago, and how the Minister of Justice used to actually be accountable in the House for their decisions.

His main theme was respecting the boundaries between Parliament and the Judiciary, and how the Privileges Committee decision to recommend limitations on an MPs ability to breach a court suppression order, helps respect those boundaries – especially as it was initiated by Parliament voluntarily.

He took a swipe at both Justice Minister Simon Power and his colleague Trevor Mallard for their recent comments, plus also at Attorney-General Chris Finlayson for not publicly defending the Judges concerned. Power criticised CJ Elias’ call for prisoners to be released early and Mallard criticised the lack of jail in the Moses exorcism manslaughter case, saying they would have got jail time if they were not Maori.

Chauvel said he thought both Power’s and Mallard’s comments pushed against the boundary of mutual respect, or comity.

In fact he revealed the Opposition was concerned enough about Mallard’s comments they their Justice Spokesperson wrote officially to the Chief Justice disassociating themselves from the comments, and saying he was speaking as a local MP only and not on behalf of Labour. The letter and response from the CJ was shown briefly on the screen.

The seminar was well attended and ably chaired by Colin James, with extra chairs having to be found for everyone. Definitely only a topic for constitutional geeks, but it is a fascinating area for New Zealand as one of the few countries with no written constitution.