Doug Bailey: We can't trust politicians to refrain from meddling in highest court

COMMENT

"It's political, not constitutional."

With this terse dismissal of United Future's decision not to support the Government's Supreme Court legislation, Attorney-General Margaret Wilson seems to come closest to her own sentiments on constitutional reform - it is, like everything else, political, another zero-sum game played to the bitter end.

How else can we interpret the decision to bully the constitutional reform through with only the barest of parliamentary majorities?

Just what the political ends may be are anyone's guess. The Government has volunteered little and the rest of us have been left to speculate as, inevitably, we shall.

The inferences are readily drawn. The republican leanings of the present administration are a matter of record and for all that the Attorney-General has tried to couch the abolition of recourse to the Privy Council in terms of national identity, that appeal smacks of nothing more than a cloak for wider constitutional change.

It is this sense that the Government's cards have not yet been put on the table that, perhaps more than anything else, underlies opposition to the Supreme Court Bill.

This and Wilson's demonstrated unwillingness to seek, much less build, a consensus, have only reinforced concern that the Government's motivations have less to do with an expression of national maturity than a desire to put a political thumb on the scales of New Zealand's constitutional structure.

Out of this comes a basic question. It has little to do with judicial competence, or the nature of our vestigial relationship with Blighty. Rather, it's whether we are mature enough to manage our own legal frameworks.

That's a question of confidence. It's whether we can trust that our politicians will be able to restrain themselves from meddling in the make-up and decision-making of our highest court to get the results they would find convenient.

It's whether we can be sure that reformist zeal or ideology will take a place second to the fundamentals of western liberal democracy.

Sadly, the track record tells us that we cannot.

At various points in the past few decades we've been saddled with administrations with a creative view of constitutional principle and law.

Those administrations have been of the left and of the right, with no one party any more guilty than the other - although perhaps there are individuals drawn from them who are.

It's not that their assaults have been wholesale, or overt. It's more subtle than that, usually involving an incremental disregard or erosion of constitutional convention.

These conventions are the unwritten rules by which we are governed: governments won't legislate retrospectively, the Speaker shall be neutral, outgoing governments will take directions from the incoming ones, politicians won't bag judges, and so on. These are some of the things that make up the rule of law.

Yet, if we treat them as a checklist, it's easy to see a problem.

The Government is increasingly given to retrospective legislation, the independence of the Speaker is being questioned and politicians of all stripes have been vocal in their criticism of the judiciary.

None of this makes for a good constitutional recipe and leads to the question: Can we afford to dispense with the one external check on what our politicians and judges do.

The answer should be "yes" but, in the present environment, it is not.

The case for change could and should have been made. But, by treating it as political rather than constitutional, the Government has succeeded in unmaking it.

* Doug Bailey is a senior member of Kensington Swan's public law team.