When a constitutional law professor warns of “dangerous foes” threatening New Zealand’s legal system, you might expect concern about genuinely destabilising forces – political interference with judicial independence or threats to the rule of law itself.
You would be wrong.
Professor Dean Knight of Victoria University recently addressed the Institute of Public Professionals about threats to our “constitutional ecosystem”. Knight lists a number of dangers – among them civic illiteracy, rushed law-making, disdain for expertise and institutional hollowing.
But one stands out for scrutiny. Knight warns against what he describes as “mischievous hyperbole” – critiques of judges for activism, overreach or stepping outside their constitutional lane. In his telling, such criticisms are foreign imports, corrosive of judicial legitimacy.
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Mr Partridge points to the three strikes Supreme Court decision in Fitzgerald where it refuses to impose manifest injustice. Does he propose that the Court’s duty is really to impose manifest injustice?
What he is saying Ralph is that the Courts have a duty to uphold the law as made by Parliament. They do not rewrite that law. Clearly the three strikes legislation was put in place due to political pressure to punish miscreants who did not know how to stop offending. Fair enough. However Judges who live in Remuera and Takapuna are not privy to the suffering from crime that goes on in other areas and so their leftist tendency to usurp Parliament’s lawmaking power in order to limit punishment of the downtrodden can come to the fore as they are not in their daily lives affected by it
Replying to Ralph. The Court’s duty, sworn to in the judicial oath, is to serve “according to law” and “to do right … after the laws and usages of New Zealand without fear or favour, affection or ill will.” The Court’s constitutional responsibility is to obey statutes. It can say a law is considered to be unjust and should be changed but has no right to ignore it. When a court refuses to obey legislation, it is substituting rule by “man” for the rule of law. The price paid for the privilege of holding office until retirement without fear of removal by the will of the people through democratic elections is suppression of personal views about what is or is not just and adherence to the requirements the law imposes on all. That’s part of what it means to serve according to law and to do right “without fear or favour, affection or ill will.”