COMMENT
A new chapter in New Zealand's legal history has begun with the Supreme Court's ruling in Prebble v Awatere Huata that the Act party's leader can expel Mrs Awatere Huata from Parliament using the Electoral Act's party-hopping provisions.
Our new highest court's first judgment means that a question of New Zealand law finally has received a conclusive judicial answer from our own judges sitting on our own soil, rather than from British judges gathered in a room in central London.
Therefore, this decision ought to be an occasion of some celebration. I, instead, fear that it might have reversed Marx's observation that history begins as tragedy and repeats as farce.
First, recall the rather peculiar background to this historic case. On one side was Mrs Awatere Huata, the "independent" MP frantically clinging to her claim that she ought still to be considered a member of a political party which had done all it could to get rid of her (short of sending round the heavies with baseball bats).
She's a bit like the nightmare guest at a social function who, after disgracing herself horribly and embarrassing all the other guests, refuses the host's polite request to leave. Except in her case the social function was Parliament, and the "invite" her election.
On the other side were Act's leaders, who have consistently argued that the very law used to oust Mrs Awatere Huata from Parliament was bad legislation which should never have been enacted.
Furthermore, they found themselves arguing their case in a forum they opposed from day one. Their justice spokesman, Stephen Franks, described the decision to replace the Privy Council with the Supreme Court as "slaughtering our gift horse of free access to the world's best neutral international referees". Finally, the case was argued before a bench headed by the Chief Justice, Dame Sian Elias. She has lately incurred the wrath of some MPs with comments such as, "where human rights and constitutional values ... are engaged, assumptions of legislative intent and deference to executive discretion may no longer be as potent".
These views have sparked charges of judicial activism, and claims that Dame Sian wants to impose court oversight of Parliament's power to make laws that trench upon fundamental human rights.
However, when confronted with an issue steeped in constitutional values, should a political party's leadership be able to dispense with an individual MP it no longer wants in Parliament? Dame Sian and her fellows on the bench took a markedly deferential approach.
They unanimously agreed that where an MP ceases to be a member of a party by virtue of that party's internal rules, the party's leader is entitled to use the party-hopping provisions to have that MP thrown out of Parliament. Therefore, the concrete effect of the court's decision is that each individual party's internal rules of membership have now become the de facto rules for remaining an MP in Parliament.
Of course, history-making moments do not always measure up to our grand imaginings. And always remember that making law is like making sausages - even if you like the result, you may not wish to examine the creative process too closely. This statement is as true of court cases as it is Parliament's activities.
Therefore, a disgraced MP has every legal right to try to cling to her well-paid position. A party, likewise, has every legal right to take advantage of a bad law once it is placed on the statute books.
And a court, once a case is before it, has to interpret and apply the legal material at hand to decide the matter as best it can. But, that said, I fear the court's judgment in this case has the potential to cast a tragic shadow over the future.
Forget Mrs Awatere Huata for a moment, and imagine a case where an MP raises a principled challenge to the leadership of his or her party. (Maurice Williamson, say, or Nania Mahuta). The effect of the court's decision is to give a party's leadership virtually untrammelled legal power to oust such a dissenting voice from Parliament.
Political parties have broadly drafted internal rules of discipline. For instance, Act's rules empower its board to expel members (including MPs) "for conduct the board considers may bring the party into disrepute".
Therefore, it will be very easy to use the embarrassment or division caused by a dissenting MP's conduct as grounds for expelling that MP from the party. Having done so, the party leader can tell the Speaker that the MP henceforth should be regarded as an "independent" MP.
The Supreme Court has decided that this new independent status automatically distorts proportionality, as required by the wording of the party-hopping provisions. Accordingly, the party leader can now use this legislation to expel the MP from Parliament. The leader does need the support of two-thirds of the party's caucus. But who is that body likely to back in a face-off between its leader and a dissident MP?
And if a court is asked to review these actions, it appears it will ask only whether the party's rules have been applied as written.
Where the letter of these procedures has been followed, the courts will not then further question the party leader's decision to have the MP expelled.
The fate of any dissident MP thus will depend upon the political calculations of a party's hierarchy. Is it politically more embarrassing to oust the MP from the party (and thus from Parliament), or to keep the MP on as a member of the party?
The Supreme Court apparently believed this was the intended consequence of the party-hopping provisions as enacted, and that the central role of parties under MMP justifies giving each party's hierarchy the power to replace any MP it believes is acting against the party's interests.
However, it is hard to see how the rather convoluted wording of the party-hopping provisions required any particular outcome. And while it is one thing to recognise the importance of parties in our democratic process, it is another to say as a matter of policy that they ought to have the effective power to substitute MPs when the party hierarchy decides it is politically convenient to do so.
It seems likely that the Supreme Court's decision reflects the dual facts that Mrs Awatere Huata's individual position as an MP had become quite indefensible, and the party-hopping legislation will cease to have effect as of the next election. The Bench might, therefore, have concluded that because their judgment was without real precedent value, it was wise to let Act remove Mrs Awatere Huata from Parliament.
This approach has the real benefit of keeping the court from incurring the ire of MPs in its first case. As a new institution, born in some controversy, this outcome was no doubt attractive. So perhaps the court, in its first decision, succumbed to Bassanio's plea: "To do a great right, do a little wrong."
* Andrew Geddis is a senior lecturer in law at Otago University.
<I>Andrew Geddis:</I> MPs had better keep their leaders happy
AdvertisementAdvertise with NZME.