There's an opinion piece in the NZ Herald today written by Mai Chen, part of the Chen and Palmer public law firm. She is suggesting that the NZ Supreme Court might be willing to make the Treaty of Waitangi as a form of higher law, consequently allowing them to strike down legislation deemed inconsistent with it.
She quotes Chief Justice Sian Elias saying that the principle of parliamentary sovereignty has never been properly tested in New Zealand - a statement which at the time caused a bit of a backlash from all corners of Parliament.
If the Supreme Court were to try this, it would provoke a serious constitutional crisis (in fact, it could well lead to us quickly becoming a public with a clearly defined consitution). They would basically be redefining the (unwritten) consitution of New Zealand - generally constitutional changes in most countries require a super-majority to change. Here they would be changing it by a vote of 3-2.
Mai Chen talks about this would allow Maori to claim preferential treatment based on their race, something quite clearly opposed by a large number of New Zealanders.
This situation would be unacceptable. The purpose of the judiciary is to interpret the law, not to make new law. Whenever judges step outside the limits of the statute they are ruling on it is generally very bad practice, and effectively reduces democracy. Granted that in many cases the legislation is very unclear and needs a lot of interpretation by the judiciary to make it work, but this definately does not apply here.
Some of our laws refer to "the principles of the Treaty of Waitangi" (without defining them of course), which is bad practice as it forces the judiciary to make them up. However, there is no hint in New Zealand law of the Treaty of Waitangi being given constitutional status. Even the Bill of Rights can be overridden by any law that cannot be interpreted consistently with it. Why should the Treaty be treated specially? It was not written as a constitutional document - it is a treaty.
Hat Tip: David Farrarwarez crack Reason 3.0
She quotes Chief Justice Sian Elias saying that the principle of parliamentary sovereignty has never been properly tested in New Zealand - a statement which at the time caused a bit of a backlash from all corners of Parliament.
If the Supreme Court were to try this, it would provoke a serious constitutional crisis (in fact, it could well lead to us quickly becoming a public with a clearly defined consitution). They would basically be redefining the (unwritten) consitution of New Zealand - generally constitutional changes in most countries require a super-majority to change. Here they would be changing it by a vote of 3-2.
Mai Chen talks about this would allow Maori to claim preferential treatment based on their race, something quite clearly opposed by a large number of New Zealanders.
This situation would be unacceptable. The purpose of the judiciary is to interpret the law, not to make new law. Whenever judges step outside the limits of the statute they are ruling on it is generally very bad practice, and effectively reduces democracy. Granted that in many cases the legislation is very unclear and needs a lot of interpretation by the judiciary to make it work, but this definately does not apply here.
Some of our laws refer to "the principles of the Treaty of Waitangi" (without defining them of course), which is bad practice as it forces the judiciary to make them up. However, there is no hint in New Zealand law of the Treaty of Waitangi being given constitutional status. Even the Bill of Rights can be overridden by any law that cannot be interpreted consistently with it. Why should the Treaty be treated specially? It was not written as a constitutional document - it is a treaty.
Hat Tip: David Farrarwarez crack Reason 3.0
Comments
My thoughts on this here:http://www.holdenrepublic.org.nz/2006/03/mai-chen-judicially-entrenched-treaty.htmlwarez crack Reason 3.0