Making a constitutional moment

It is a week for constitutional moments — in Baghdad yesterday and in Wellington on Thursday.

The Baghdad moment was the official handover by the American occupiers to an Iraqi regime. This is supposed to be a step towards a “democratic” Iraq.

If so, it will be a long journey. Iraq has no tradition of democracy, lacks a sufficient middle class on which to build democratic traditions and is riven deeply by religion and ethnically, three nations rather than one. And next-door Iran is fomenting discord.

As Terence Wesley-Smith of Hawaii University told the annual Otago Foreign Policy School on Saturday, it takes a long time to make a working, stable state — “and that has been associated with violence almost everywhere”, including, over centuries, in Europe.

So Iraq’s best short-term hope for stability, prosperity and human rights lies in a benign autocracy which might also stage a display of democracy. Iraq’s short and violent history suggests authoritarian rule is more likely. The Americans themselves have shown the way in the prisons.

Fundamental to a proper democracy (and to a successful market economy) is the rule of law, even over the rulers. That is the point of the Wellington constitutional moment on Thursday. On that day the new Supreme Court will formally open for business after six months preparation.

Nine appeals have been filed, a reasonable number given that cases decided in lower courts before January 1 still go to the Privy Council and top-tier appeals must be carefully prepared. Then to be accepted for hearing (one so far has been ruled out), cases must have constitutional or otherwise out-of-the-ordinary legal significance.

That is because the Supreme Court’s job is to shape the law through its judgments. It is a very important task which the Privy Council had been doing at most patchily.

It is that importance which made last year’s legislation setting up the court and severing the imperial link so contentious. Despite denials by the government, which said it was a mere change in the court structure, the Supreme Court Act changed our constitution.

Thursday’s opening ceremony will nonetheless be short in time and on grand pomp. The court is housed in a basement of the High Court in Wellington. It will eventually move to a pile of nondescript buildings a few blocks away where the High Court (then misnamed the Supreme Court) used to sit.

The penny-pinchers in the Beehive opposite passed up the opportunity to commission an impressive new courthouse to invite respect and a little awe from citizens. It is as if ministers are shy of their constitutional handiwork.

And ringing in the court’s ears on Thursday will be Deputy Prime Minister Michael Cullen’s recent attacks on judges. It is an inauspicious birth.

The court will also start work knowing close to half of Parliament disapproved of the very notion that it should exist and are still carping in the media this week. National quixotically vowed to petition the British to restore Privy Council appeals. Richard Prebble fired up radio talkbacks to fret about a “socialist republic of Aotearoa” the court was supposedly to usher in. And many in the legal trade attacked it for lack of legal skill, especially in commercial law.

So this new court will have to earn its mandate.

It won’t be helped in that by the fact that four of its five members sat on the Appeal Court in the foreshore/seabed case which has plunged politics into turmoil. Hence Cullen’s attacks — that the judges were “making” law instead of just interpreting it.

His attack was misconceived. Judges do “make” the common law, by applying precedent and analogy to new situations, as on the foreshore/seabed. But if Parliament enacts a statute covering the matter, as it has on most things, judges abide by and interpret the statute — with this unthinkable exception, canvassed by judges around the world, including Chief Justice Sian Elias, that they might not enforce a statute that outrageously transgresses basic rights, for example by ordering all Jews killed.

More mundanely, to earn its mandate the court will need to choose its cases carefully to ensure it is seen as a court of weight, shaping the law with care and restraint, and ensure its judgments can stand scrutiny for rigour of legal reasoning and stand comparison with relevant foreign courts, especially the Australian High Court.

It will need to take appropriate cognisance of leading international judgments, especially in commercial matters. And it will need to explain itself convincingly to the public, especially in Treaty and Maori common law matters, a test the Appeal Court flunked on the foreshore/seabed judgment.

The judges of the new court are not revolutionaries or surreptitious republicans. They are careful and mostly conservative. Their challenge now is to prove their worth to a doubting or uninterested public. The integrity of the constitution depends on it. Which makes Thursday a day of great importance.