Editorial: Supreme Court faces its first test

The newly created Supreme Court is already sharpening its constitutional claws. Chief Justice Sian Elias has publicly taken issue with Finance Minister Michael Cullen on the risks of "judicial activism" and she has staked a claim for resources immune to Parliament's say. When Attorney General Margaret Wilson and Prime Minister Helen Clark weighed in on those issues, the Chief Justice was not silenced. She denied the charge of judicial activism in an article published in the Herald last week.

This must be a matter of surprise to a Government that appeared to believe when it set up the country's highest court that it was a move of no constitutional moment. But that assertion may have been merely to ward off demands for a public referendum on the nature of the court that was to replace the Privy Council in New Zealand law. In any event, the court has begun in the fine tradition of supreme judges to turn on their creators.

Now, the court has received its first application and it is one that could hardly be more sensitive for the country's constitutional future. The Act Party has applied for leave to appeal to the Supreme Court against a ruling of the Court of Appeal that the party cannot have an MP, Donna Awatere Huata, expelled from Parliament. The Court of Appeal ruled that the party could not use the Electoral Integrity Act, the so-called "waka jumping" legislation, to unseat an MP who had not voluntarily quit the party. It seems an unarguable decision; the legislation was passed in response to the defection of an Alliance MP, Alamein Kopu, that upset the proportional representation in a previous Parliament. But Mrs Awatere Huata did not leave her party, she was expelled from its caucus when she failed to satisfy its questions about her behaviour.

Act, however, is not appealing directly on that issue. It will ask the Supreme Court to rule that the decision is one for Parliament not the courts. Former leader Richard Prebble, in whose name the case is brought, argues that Parliament's rules of membership are a matter for Parliament alone. Speaker Jonathan Hunt has already designated Mrs Awatere Huata an independent on Act's advice, and reduced Act's status in Parliament by one seat. But she went to court to stop the party taking further steps to have her thrown out of Parliament.

This is a case where the interests of Parliament and the public do not necessarily coincide. Parliaments in the English tradition are fiercely protective of their constitutional supremacy and they are unchallengeable masters of their own proceedings. Courts are extremely wary of intruding on Parliament's affairs. But the public believes quite rightly, if not strictly correctly, that sovereignty lies with "the people" who elect a Parliament every three years. Arguably, only those who elect an MP should have the power to eject her and the Supreme Court could uphold that principle by refusing Mr Prebble's application and allowing Mrs Awatere Huata to remain until the next election (assuming the fraud charges she faces are not resolved before then).

But the public interest is complicated by the fact that the public has chosen to elect parties to Parliament with a system of proportional representation. Mrs Awatere Huata was elected on Act's list and it is the number of seats awarded to the party, rather than the listed individuals, that expresses the electorate's will. Yet a strict application of that argument would allow parties to toss people out of Parliament at will. There is a longstanding principle of English parliaments that members are not party ciphers; once elected they each owe the country their honest personal judgment of its interests. The reason Mrs Awatere Huata has fallen out with her party may have nothing to do with issues of national interest but it should not be within the power of the party to have her expelled from Parliament.

All of this will be academic when the ill-conceived waka jumping law expires at the next election. But in the meantime the Supreme Court could do the country a favour by confirming the people's belief that they, not those they elect, should have the final say.