Liam Hehir points out:
Forty-two senior lawyers, known as King’s Counsel, have written to the government with a scathing critique of the Treaty Principles Bill. Their letter raises a number of concerns with which I am in full agreement. However, they also make a statement about Parliament’s law-making authority that contains a fundamental and egregious error.
This is not something I say lightly because these are very senior and respected members of the legal profession. They have likely forgotten more law, within their areas of expertise, than I will ever know. But on the topic of Parliament’s authority, there can be no questions.
They assert that it is “uncertain” whether Parliament can legislate in the way the bill proposes, arguing that it is “not for the government of the day to retrospectively and unilaterally reinterpret constitutional treaties.”
This is very significant. The 44 KCs are saying that they are unsure if Parliament is supreme.
Arguments against Parliament’s authority to make law affecting anyone in New Zealand cannot succeed in our courts currently. Parliament’s power to legislate needs to extend to all matters within these islands. No treaty or statute is beyond its reach.
So why would such eminent members of the legal profession make this erroneous claim? Well, there has been a long-standing desire within parts of the legal profession and associated academic fields in which judicial activism and scepticism of parliamentary sovereignty have been quietly cultivated for decades.
Basically the KCs are suggesting that rather than Parliament being supreme, the lawyers should be supreme. They can over-ride Parliament.
The institutions of representative democracy are not infallible. Lawmakers with a mandate from the people will never be immune from the risks of poor legislation or misguided decisions. The same goes for judges, of course.
Parliament carries an important self-correcting mechanism: if lawmakers go too far or lose touch with the public, they risk being voted out. Judges, however, enjoy long or even lifetime appointments, making them immune from the direct accountability that keeps elected leaders in check. This insulation from public opinion is problematic because it enables detachment from the consent of the governed.
Judges should only get to over-ride Parliament, if there is a formal constitution that binds Parliament. However the key thing is that the constitution is amendable by either Parliament or the people – hence is democratic.
The assertion that Judges can over-ride Parliament on the basis of their interpretation of common law is dangerous. It makes Judges unelected lords.
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