It is an assertion of nationhood or a quixotic discard of top brains. Or, if you are conspiracy junkie, scare yourself with a socialist plot. The Supreme Court Bill has got all this and more.
At least equally important, it is a defining moment as to where sovereignty lies, in the people or in Parliament.
For Sir Geoffrey Palmer, “it is the nationhood argument that is decisive,” as he told the bill’s select committee. “Abolition [of legal appeals to the British Privy Council] is a mark of New Zealand’s national identity, its confidence and its sovereign power.”
Sir Geoffrey was Prime Minister in 1989-90. He gave us the royal commission which gave us MMP. He gave us an updated Constitution Act and the Bill of Rights Act. A quintessential constitutional man.
Business and a segment of the law industry abhors the discard of top legal brains. Why cut yourself off from access to the best in the world, especially in commercial cases?
Some go a step further and imply or state outright that our judges are second class and often get it wrong (ignoring that Appeal Court Justice Sir Kenneth Keith adjudicates disputes between Americans and Canadians over their free trade pact.)
Some opponents of the bill just don’t like Margaret Wilson. To hear them, you would think that single-handed she will subvert the rule of law by appointing leftwing cronies to the Supreme Court who will warp our law in dark and dastardly ways.
Really? Where does this come from? From Wilson’s clarity of ideology, as an unrepentant socialist feminist. To power-suited men in legal BMWs Wilson spells “witch”.
They don’t see the team-player Wilson. They don’t register that her judicial appointments have been by the book and that it has been made clear for months that the first court will be the Chief Justice (a National government appointee) and the four senior available Appeal Court judges — from an Appeal Court which has been mostly uncreative in its judgments.
In fact, it is National’s Richard Worth and ACT’s Stephen Franks who are the conspirators. They propose to fire the Supreme Court when National gets a turn in power — and the judges with it.
If Labour dared to promise that, Worth and Franks would howl constitutional outrage against the principle of an independent judiciary. Only an address of Parliament can remove a judge — a very rare step, taken only with cross-party support.
Franks’ and Worth’s objective is to warn judges off accepting appointment to the new court. And National table talk has it that one or two have begun to waver.
Worth also has the quaint notion that if appeals to the Privy Council are abolished, a fresh National government would seek to get the privilege back. Really? At a time when the British government, if anything, may well be edging towards phasing us out?
But if all else fails, National and ACT have a fallback: Maori are divided.
There is little in the Privy Council’s decisions that would lead Maori rationally to want it still ruling over their rights. It is more a mystical clinging to the British Crown with which Maori originally signed the Treaty of Waitangi. (The Privy Council is the Queen’s council.)
There is a rational view, advanced by Ngai Tahu: in disputes over the Treaty, both sides, government and Maori, need an independent arbiter. This is the counter to the abolitionists’ argument that the Privy Council judges do not have enough knowledge of our local customs.
Whether the bill will pass may depend on Maori opinion. The Greens, whose votes may be vital to the bill’s passing or not, want to be satisfied on that. That makes next month’s hui called by Tumu Te Heuheu pivotal.
Unless, of course, the issue is submitted to a binding referendum (which would submerge Maori in the majority, an argument against it). Peter Dunne and some in the cabinet are sympathetic to this. The Prime Minister is not.
Nor are the Greens. Nor is Sir Geoffrey. Sure, he told the committee, changing the court structure is a constitutional matter but not a big enough one to justify a referendum, as did adopting MMP. For most people the district court is more important than the final appellate court, he said. No one suggests change to the Environment or Family Court must be by referendum.
This argument presumes Parliament is sovereign, not the people. That is a relic of history, descended from the formula of “the Queen in Parliament” as the fount of sovereignty.
Ask your friends who is sovereign, Parliament or the people. Very few will say Parliament. The constitution is Parliament’s plaything only on an historical technicality. The constitution belongs to the nation, which it in part defines. And the nation is the people, not their delegates in Parliament.
Changing the top court is much more than a matter of the “court structure”. It is a significant constitutional change. In denying a referendum, the government denies a seminal element of the very nationhood it and Sir Geoffrey assert in support of the bill. A beautiful paradox.