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Allan, J --- "Changing the Voting System or Creating a Brand New Highest Court - Is One More Constitutionally Fundamental than the Other in a Liberal Democracy?" [2005] OtaLawRw 2; (2005) 11 Otago Law Review 17

Changing the Voting System or Creating a Brand New Highest Court — Is One More Constitutionally Fundamental than the Other in a Liberal Democracy?*

James Allan**

* This article was motivated by a personal conversation I had with one of the five founding judges appointed to New Zealand’s new Supreme Court which replaced the Privy Council as New Zealand’s highest court in 2004. During that conversation this judge told me that changing the voting system was clearly, in the judge’s view, a more constitutionally fundamental step than abolishing the Privy Council (and creating a new replacement court). It did not seem so straightforward, then or now, to me. I would like to thank Rick Bigwood, Andrew Geddis, Kathryn Hollingsworth and Grant Huscroft for their comments on an earlier draft of this paper.

** Garrick Professor of Law, University of Queensland, Australia (and formerly of the Faculty of Law, University of Otago, New Zealand).

What does it mean to say some course of action is “unconstitutional”? In jurisdictions with a written constitution we know well enough what it means. It means that the proposed action conflicts with a prohibition or requirement in that written constitution. Perhaps the person elected President in the United States turns out to be under 35 years of age or to have been born outside the country to non-American parents. (See Article II, s. 1 (5) of the Constitution of the United States of America.) Or perhaps the province of Ontario in Canada passes a statute purporting to increase the penalty for murder. (See s. 91 (27) of the Constitution Act 1867 (formerly the British North America Act 1867) giving the federal government exclusive lawmaking authority over the criminal law.)

These are instances of clear unconstitutionality, where what has been done obviously infringes a prohibition. These instances fall into what H.L.A. Hart termed “the core of settled meaning”[1] where virtually everyone agrees the prohibition’s meaning extends to the case at hand.

Such cases, though absolutely fundamental to the purpose of having laws and constitutions in that they provide a framework for citizens and officials to shape their expectations and create the core certainty for those expectations to be met on a regular basis,[2] are nevertheless not the sort of cases that reach the highest courts.[3] Far more likely to be the subject of litigation are disputes about a constitutional provision that fall into “the penumbra of doubt”[4] or “open texture”[5] of the provision’s ambit, to continue with Hart’s famous metaphors.

To say in these instances that conduct in a case falling into a written constitution’s penumbra of doubt or open texture was “unconstitutional” is to say that what was done may have conflicted with or infringed one of the written provisions. In other words, there is doubt; reasonable, knowledgeable and sincere people disagree about the ambit of the provision and the aegis it provides. The party or parties claiming this will not, of course, express themselves in a way that concedes the doubt. That would be tactically unwise. They will say the conduct or statute was or is unconstitutional. Likewise, the judges, in deciding these cases that fall in the penumbra of doubt of some provision or other of a written constitution, will almost always write their judgments as though the answer had been plain from the start. They have strong incentives to mask the uncertainty and, too, the discretionary power such uncertainty gives to the point of application interpreter. As H.L.A. Hart says:

The truth may be that, when courts settle previously unenvisaged questions concerning the most fundamental constitutional rules, they get their authority to decide them accepted after the questions have arisen and the decision has been given. Here all that succeeds is success…. Where [a very surprising piece of judicial law-making concerning the very sources of law has been calmly ‘swallowed’], it will often in retrospect be said, and may genuinely appear, that there always was an ‘inherent’ power in the courts to do what they have done. Yet this may be a pious fiction, if the only evidence for it is the success of what has been done.[6]

The most obvious place to look in a written constitution for provisions with a large open texture that generate plenty of uncertainty and therefore afford judges a high degree of law-making power are bills of rights. An entrenched bill of rights that is part of a jurisdiction’s written constitution, as is the case in, say, Canada or the United States, creates myriad instances in which conduct or statutes may — or may not — be unconstitutional. Differently put, it is often the case that litigation over a provision in a bill or charter of rights falls in the penumbra of doubt. The course of action complained of may have been unconstitutional. But then again, it may not have been. Often the highest judges themselves are virtually evenly split and the case decided on a 5-4 vote.[7]

Here, we know perfectly well what it means to claim something is unconstitutional. It is just that there is much disagreement and dissensus on whether that claim should be supported. Depending on one’s deeper philosophical leanings, it is also debateable whether such essentially moral disagreements have right answers at all in any way analogous to the way mind- independent right answers exist to questions about the material, natural world.[8] And even if there are, or might be, such right answers in theory, it is further at issue whether limited biological creatures like humans can know what those answers are.[9]

When we turn from jurisdictions with written constitutions to those without,[10] it is more indeterminate still what it means to say some course of action is “unconstitutional”. In such jurisdictions there is no one, single, over-arching written document laying down rules for the making of laws, for the dividing up of power, for the establishment of governmental authority and the basic institutions of government, and even for the changing of those same rules themselves. That one supreme, written document, the one constituting the state, is absent. Accordingly, there is more scope to claim that something is unconstitutional because what comprises the constitution — what limits power and constrains decision-makers — is more amorphous and open to debate and disagreement.[11]

At this point it is worth noting what goes hand in hand with an unwritten constitution; it is parliamentary sovereignty — the notion that the elected legislature is legally (though not morally or politically) unlimited in what it can do, provided it does so by statute.[12] This is worth noting because one possible retort in a jurisdiction with an unwritten constitution is that no actions are unconstitutional, provided they are done by passing a statute.

Now as my goal in this article is to consider the constitutional proprieties, in New Zealand, of either 1) changing the voting system or 2) creating a brand new highest court where that is done by the passage of a statute without more, this retort would end the discussion. Neither would be constitutionally improper. One could pass a statute ending appeals to the Privy Council and creating a brand new highest court with the tiniest of majorities in the House of Representatives.[13] Likewise, one could pass a statute changing the electoral system and ridding New Zealand of the MMP voting system with the tiniest of majorities in the House of Representatives. True, when it comes to the voting system there is in New Zealand s. 268 of the Electoral Act 1993 to be got round, and I will say more about this later, but for now it suffices to note that this provision merely singly entrenches the method of voting.[14] If a majority in the House were so inclined, indeed if the barest majority imaginable were so inclined, it could first repeal s. 268 and then it could change the voting system. In legal terms, nothing more than a one vote majority would be needed at any stage of the process just sketched.

On the retort given above, therefore, where the issue of constitutionality is treated as (or collapsed into being thought of as) synonymous with legality, no actions done via a properly enacted statute could ever be said to be unconstitutional in New Zealand.

That is one way, I concede, of understanding any and all claims of constitutionality and unconstitutionality in a jurisdiction such as New Zealand where there is an unwritten constitution with parliamentary sovereignty at its core. However, it is neither a necessary nor helpful nor interesting way of understanding the claim of “unconstitutionality”. There is no need to collapse that claim into one of legality. The two need not be co-extensive.

If possible, we should prefer to leave ourselves with room to say that a properly passed Act of Parliament will always be legally valid[15] but not for that reason alone necessarily constitutionally proper. If possible, in other words, we should want to avoid having talk of “constitutionality” and “unconstitutionality” become wholly redundant or otiose, fully subsumed in the concept of legal validity.

In my opinion, it is perfectly possible, in a jurisdiction such as New Zealand with an unwritten constitution, to avoid this reductionism of the concept of constitutionality into the concept of legality. And I say this as someone who is a strong advocate of unchecked parliamentary sovereignty.[16]

Here I am echoing Hart’s argument in chapter nine of The Concept of Law that we should prefer a broader understanding or concept of law — one that includes the morally bad and even the morally wicked — to a narrower understanding that rules out the morally wicked ab initio.[17] My point here is much the same. It is better to say “this course of action (say, changing the voting system or creating a brand new highest court) is within the legal powers of the democratically elected parliament but nevertheless the issue is so fundamental that the bare majority vote in parliament process, without something more (such as a referendum or an explicit electoral mandate), is insufficient and unconstitutional”. It is better to leave ourselves free to say that than to be obliged to say “this course of action is within the legal powers of the democratically elected parliament and therefore for that reason alone it must be constitutionally proper”.

In this case too, as with Hart’s, the narrower, more reductionist approach oversimplifies the issues at stake. What we want to be able to do is to make a relative comparison (in a liberal democratic context) between creating a brand new highest court, on the one hand, and changing the voting system, on the other. Having done that, we want then to ask if one or both of these should require more than the bare party political majority of one vote in the House needed to pass a statute. I can see no obvious advantage in foreclosing these inquiries before they even begin, which would be the effect of equating constitutionality to legality. Accordingly, I will treat claims of “unconstitutionality” as broader than claims of “illegality”, simply noting that when it comes to constitutional conventions, the Canadian Supreme Court has also opted for this broader, Hartian vantage.[18]

There is another possible approach that would also have the effect of foreclosing first principles inquiries into the propriety of changing either the voting system or the highest court by means of nothing more than a bare majority vote in the House (and, concomitantly, of considering whether one of these is more fundamental than the other). The tactic here would be to argue by analogy, to point to comparable English-speaking countries with written constitutions and see whether either is locked in and made constitutionally protected in these other places. Is it the voting system or the highest court that gets put beyond the reach of amendment by statute?

On this approach one would point to Canada, to Australia, and to the United States and look to see in those jurisdictions which is harder to change, the highest court or the voting system. If that gets one too enmeshed in overseas minutiae,[19] perhaps one could compare how the Privy Council was abolished in both Canada and Australia, where it was also at one time their highest court. Did its abolition and replacement require more than a simple statute in those jurisdictions?

The answers are not straightforward. Certainly in both Canada and Australia there was cross-party support for abolition. The change did not occur on a party political basis (as was the case in New Zealand) with one of the main political parties in favour and one opposed. Given that there was that bipartisan support, abolition of the Privy Council in Australia or Canada could easily have overcome the sort of extra procedural hurdle of needing to be passed by 75 percent of all members of the House that in other contexts our Electoral Act 1993 singly entrenches.[20] In New Zealand, by contrast, support for abolition of the Privy Council — for getting rid of the then highest court — fell far short of that 75 percent hurdle.

That said, this sort of “argument-by-analogy-to-what-others-have-done” is barely more satisfying or dispositive than the ultra-reductionism of equating constitutionality to legality and ending the comparison before it begins. What we want is a consideration of what, if anything, makes a voting system and a highest court particularly important in the operation of a liberal democracy. Then, in either case, we can ask if there might be grounds, even in a jurisdiction with parliamentary sovereignty at its heart, for elected legislators to refuse to proceed without something more than a bare majority of support in the House (where proceeding on that bare basis would nevertheless certainly be within their legal powers).

If those grounds ever do exist, then talk of “unconstitutionality” as something broader and more encompassing (though, no doubt, also more amorphous and indeterminate) than “illegality” is both comprehensible and quite possibly useful. As noted above, it may well come in handy to be able to single out certain rules or institutions that are felt to be so important to all the others that some higher degree of consensus should be sought before changing them. When this is will clearly itself be highly contestable. It may be when a country is on the verge of entering into a treaty that seems to be signalling and formalising that country’s partial loss of sovereignty and pending participation in a federal super-state.[21] It may be when, during war, the maximum term of parliament is extended.[22] It may be when a free trade agreement has been negotiated with a powerful neighbour that will have huge ramifications across society.[23]

Obviously there is no one specified or authoritatively laid down way to signal or obtain this higher level of consensus surrounding constitutional matters. It may be shown by referendum, by the outcome of a general election seeking a specific mandate, by a super-majority in the House, by cross-party support, or by something else. My point here is just that if any of the above is granted we can go on to compare the relative importance of changes to New Zealand’s voting system and highest court and possibly think one or both are sufficiently crucial to be deemed constitutional matters in need of more support than that shown by the passage of a statute on a bare majority in the House basis.

It is to that comparison that I now turn.

A voting system in a liberal democracy determines how elected legislators are chosen. Where Parliament is sovereign these elected legislators have the final say on contentious social policy issues as well as providing the pool from which members of the executive such as the Prime Minister and Minister of Finance are chosen. So the voting system matters; how elected legislators are chosen is a basic feature of any democracy, including New Zealand’s. Any voting system (at least in the democratic world) will have strengths and weaknesses, advantages and disadvantages. Whether you like or dislike any particular system will depend largely on what you are seeking to emphasize and achieve.

The standard voting system used in most of the English-speaking world — the one used in Canada, the United States, India, Britain, Singapore and elsewhere — is known as first-past-the-post (“FPP”). This is a winner-takes-all system. The person polling the highest number of votes in any constituency, even if he or she wins by only a handful of votes, wins that seat and a place in parliament. The winner needs only to obtain more votes than anyone else, a plurality. There is no need to get (and in fact winners rarely do get) over half the votes cast in the constituency.

This was the voting system used in New Zealand until the election of 1996. FPP voting systems deliver majority governments; they accentuate the outcomes of both the winners and losers. A political party that wins 38-40 percent of the total votes cast will often be rewarded with a majority government. Meanwhile small political parties do very badly under FPP. This is a voting system which produces a clear winner and a clear loser while annihilating small and fringe political parties; it tends to polarise political debate between the “ins” and the “outs” forcing there to be two main, broach church political parties.

There are two main benefits of this voting system. Firstly, voters are able to send clear messages to those in power — they can throw them out, as it were. (And the value of this ability should never be underestimated.) Secondly, FPP allows those who win to get things done. New Zealand was the world’s first country to grant women the vote, to bring in sweeping social welfare policies and, decades later, to restructure those policies along more liberal lines. None of these would have happened nearly as quickly as they did, some perhaps not all, with a voting system that did not deliver strong, single party majority governments.

At virtually the other end of the voting system spectrum is the mixed-member- proportional (“MMP”) voting system to which 53.8 per cent of the roughly four- fifths of New Zealanders who voted in a 1993 binding referendum opted to move the country. MMP is basically a copy of the German lower House voting system. It is one of various sorts of proportional representation systems that tend to prevail throughout Europe, differing from its well known rival STV proportional system in having closed party lists that give more power to the leaders of the political parties than they would have with STV.

The advantages of MMP (and other proportional systems) tend to mirror the disadvantages of FPP, and vice versa. So MMP does not deliver single party majority government. It gives much greater weight to smaller parties and those inclined to support such parties. Negotiations on policy are more likely to take place after an election, after the voters have had their say, as big and small political parties attempt to come up with the sort of compromises that will allow a government to form — and that are the sort of compromises made internally within the broad church big political parties under FPP before an election.

As I said, any voting system from FPP to MMP to anything in between will have strengths and weaknesses. Each is a compromise bargain struck to emphasize something at the expense of something else. Were there a desire amongst some sizeable percentage of voters to move from one voting system to another, why might one think such a change should require more than what is needed to enact a statute?

The obvious answer is a fear of abuse of power, of politicians’ self-interest inclining them to move to a voting system that would entrench their position and power. One thinks here of John Ely’s views[24] about when the judiciary is a legitimate guardian of certain rights, namely procedural rights that guarantee a well-functioning democracy. Perhaps, too, one thinks of drawing an analogy to the sort of justifications used to take the power to draw electoral boundaries away from politicians to prevent gerrymandering.[25]

Concern about that sort of potential abuse might lead one to say any change to the voting system is a constitutional matter needing something more than the regular passage of a statute. The case is not as strong as it would be against, say, lengthening the maximum term of parliament before the next election, or taking back the power to draw electoral boundaries (and so making possible gerrymandering). That is in part because any move back from MMP to FPP, say, would probably make it easier, not harder, for voters to remove politicians they dislike and to punish political parties.[26]

In fact, if we try to imagine in practice how a shift from MMP to any other voting system currently in use in the democratic world would further corruption and abuse of power it is not at all as easy to specify as the many high-flown references to John Ely and the dangers of corruption and gerrymandering might suggest. The best I can come up with are voting systems, like Japan’s, that give disproportionate weight to rural and non-city voters and thereby lock-in an advantage to politicians representing such voters. Moving to a voting system like that via statute certainly looks unconstitutional.

Of course the dangers of corruption and abuse of power are not the only basis for saying changes to the voting system are a constitutional matter. All voting systems favour certain groups over others. In the case of MMP, those favoured are voters inclined to vote for smaller parties. One might well wish for that partiality to be protected against amendment by a majority of those in the House, to prevent overturning save by a referendum or super-majority.

On balance, then, it seems to me that there are at least some grounds for wanting to say the voting system is a constitutional matter, but that those grounds are not as strong, on examination, as some assert. The unique existence in New Zealand of a singly entrenched set of higher hurdles to any change to elements of the electoral process, including the voting system,[27] buttresses that claim to unconstitutionality. But it does so only in so far as it is an empirical indication of what will prove difficult to do by statute alone. It does not change the fact that the hardest hurdle to overcome before any change of the voting system will happen is likely to be the opposition of those very politicians who have been elected under it. In all but the most dire circumstances those politicians will not want change; they will want to stay with the system under which they have been successful. So getting a statute passed to remove MMP or even to allow for another referendum is likely to be at least as hard as winning a referendum seeking its removal.[28]

Moving over to the other half of our comparison, how do changes to a jurisdiction’s highest court compare to changes to the voting system? Again, much will depend on the facts and how the change is characterized. If we present the change in nationalistic terms, as the inevitable breaking of ties with the colonial power and nothing more than the setting up of a domestic highest court, we can go some distance towards making the change seem relatively slight.

“All we are doing is repatriating our highest court, nothing more, and that is — or should be to all right thinking people — so uncontentious that surely it can be done by statute on the barest of majority votes in the House.”

For that argument to work, however, there needs to be widespread concurrence with how the change of highest courts is being characterized. It needs it to be an empirical fact that most people in the jurisdiction do see the change in those nationalistic terms.[29] Otherwise, the argument simply begs the question. Supporters of this repatriation characterization simply end up assuming that their delineation of what is happening is the correct one, which is the very point at issue. And that in turn masks the second-order issue also in dispute, namely, how should a change to the highest court be made when there is this fundamental dissensus and disagreement in society about whether that change is desirable.

It certainly seems to me that New Zealand’s recent abolition of the Privy Council can be characterized in a different, non-nationalistic, and at least equally plausible, way — one which makes the change look very much to be a constitutional matter in need of something more than passage by statute with 63 votes out of 120 in the House.

That alternative characterization would start by noting that the proposed change of highest court in New Zealand, the proposed abolition of the Privy Council here, did not follow the pattern set in Canada and Australia. In both those countries the Privy Council had been replaced by the then existing highest court with cross-party support. Therefore, a key feature of abolition in those countries was that it was not accompanied by the need to appoint a wholly new set of judges to a new highest court.

A situation in which one government, in effect, is putting itself in a position to appoint — in one go — all the judges to a new highest court, a court that the government is itself pushing into existence on a bare party political basis, is certainly an unusual, possibly unique, situation (at least in the democratic world).

Recall the history leading up to enactment of the Supreme Court Act 2003 that effected abolition from 2004. Firstly, despite much talk and a number of initiatives to abolish the Privy Council over several decades, as of 2002 it was still New Zealand’s highest court. At that point the Helen Clark Labour government (first elected in 1999 and then re-elected in 2002) decided to push for abolition. The Attorney-General, Margaret Wilson, set up a Ministerial Advisory Group[30] to consider how best, and with what, to replace the Privy Council.[31] That Advisory Group reported in April, 2002 and recommended establishing a wholly new highest court to be called the Supreme Court.[32]

As I have said, there was no cross-party support for this move to abolish the Privy Council and create a brand new highest court. A sizeable majority of submissions to the Justice and Electoral Select Committee, including the Auckland District Law Society’s submission, was opposed to the government’s abolition plan and in favour of retention of the Privy Council as New Zealand’s ultimate appellate court.

Composition of, and appointments to, this new Supreme Court made matters worse. The new court was to have four new judges plus the existing Chief Justice.[33] To start, and in keeping with the normal process for appointing judges as vacancies occur, the Attorney-General claimed complete discretion. Then she moved to indicating that in all likelihood she would take the advice of a special panel (comprised of the Chief Justice, the Solicitor-General, and a former Governor-General),[34] then to saying that she would almost certainly make all four appointments from the existing seven person Court of Appeal (the then highest domestic court). Next, the Attorney-General said she would definitely make her appointments from the Court of Appeal before, finally, simply appointing the four most senior Court of Appeal judges, reaching in the end, and after much backtracking, the result many critics had from the start urged was the most constitutionally proper — or at any rate least constitutionally improper — one as far as appointments were concerned, assuming the change of top courts was going to be pushed through come what may.

Opposition to this change of highest courts sprang from a variety of objections. For instance, some opponents thought New Zealand’s small population is too tiny to produce enough top quality judges. Some others, those who favoured retaining as many links to the Crown as possible, simply wanted to retain the symbolism encapsulated by the Privy Council. And others still thought their Lordships on the Privy Council would be less likely to veer into the sort of activism that leads to uncertainty in contract cases and to second-guessing parliament in constitutional cases. For whatever reasons, though, business groups were widely opposed to abolition as were a large number of lawyers.

With that rough background we can now ask a similar question to the one posed above in relation to changes to the voting system. Where a sizeable percentage of voters have a desire to abolish the existing highest court and replace it with a brand new one, why might one think such a change should require more than what is needed to enact a statute?

Here the obvious answer is again (as with the voting system) a variation on the abuse of power theme. The worry is that the new court will be likely to reach different substantive outcomes than the one being abolished, and that these outcomes will on the whole favour the political party instigating the change of highest courts. The advantage wrought by the change of highest court might be accomplished, according to this worry, by stacking the new highest court with judges whose outlooks and philosophies of interpretation appear likely to deliver more amenable outcomes than those delivered by the judges of the court to be abolished. Alternatively, where the old highest court is abolished and the next tier down simply moved up and put in its place — thereby ruling out any possibility of stacking the court there and then — the feared advantage to the political party instigating the change of highest courts may still exist. The fear now is not of a direct stacking of the new court but rather that a comparison has been made between the likely outcomes generated by the old highest court and those of the next tier down, and that the latter has looked the better bet to those instigating the change.

Any perceived politicisation of the top tier of the judiciary — and I emphasize perceived rather than real — would have very bad consequences in any liberal democracy. An independent judiciary, and one that is perceived to be so, is crucial to the rule of law on any of the contested meanings of that concept.[35] So where one main political party believes, say, that the change of highest court will usher in a more activist, less-deferential-to-elected-authority judiciary, and one whose views are likely to align more consistently with their political opponent’s views, the change of highest court by statute alone will seem illegitimate. It will appear unconstitutional to effect this change on a bare party political basis.

That appearance of unconstitutionality could be lessened or eliminated by some further indication of support for the change of highest court. A successful referendum would signal that further support in society at large. So too would victory in an election fought specifically on the issue of change. Any indication of a higher degree of consensus would be desirable and help avoid the appearance of a politicised judiciary.

The case for effecting any changes to the highest court by means of something more than what is needed to pass a statute is strengthened when one realises that in the last few decades there has been a marked increase in the power of the judiciary vis-à -vis the legislature and executive throughout the common law world. I take this claim to be virtually self-evident but if support for it is thought necessary merely consider what Canada’s entrenched Charter of Rights has done for the relative power of judges there[36] and, likewise, what the effects of New Zealand’s statutory Bill of Rights have been.[37] Then look at the Australian judiciary’s successful attempt to create implied rights (in the absence of a Bill of Rights)[38] and what the American Supreme Court has done since, say, Brown v Board of Eduction.[39] Even the judges in the United Kingdom have demonstrated less willingness to defer to the elected Parliament.[40] (And all this without even mentioning the development of administrative law post Second World War, with the huge power gains of the judiciary in that realm.)

Personally, I do not think it likely that any legal academic could, with a straight face, argue that the power of the judiciary has not increased — and increased markedly — across the common law world.[41] This trend towards ever greater judicial prominence in social policy-making, most notably in the area of contested rights claims,[42] in my view clearly bears on the issue of the constitutionality of changes to the highest court. This fact of heightened judicial power makes the case for the unconstitutionality of bare majority in the House changes to the highest court more persuasive and compelling.

On balance, then, it seems to me that the grounds for wanting to say any change to the highest court is a constitutional matter are no less weighty — and probably weightier — than they were with changes to the voting system. Constitutionalism is ultimately about locking things in and making change difficult.[43] In a jurisdiction with an unwritten constitution, namely New Zealand’s, changes to either by the regular statutory process will always be legal, but in an important sense such changes may (in certain circumstances) nevertheless be unconstitutional. Changes to a highest court, more particularly the abolition of one and the substituting of another, pose no fewer potential risks than changes to a voting system. In practice, given that we would be moving between two voting systems that were both already in operation in other liberal democracies, the risks of altering the highest court on nothing more than a bare majority in the House basis may well be higher.

In my view, therefore, the way New Zealand’s new Supreme Court was brought into existence was, in a meaningful sense, unconstitutional.

[1] See H.L.A. Hart, The Concept of Law (Oxford University Press, 1961), p. 140. Hart also refers to this as a “core of certainty” (ibid., p. 119). See too pp. 144-150.

[2] As Hart argues (ibid., especially chapters 5-7) this is the main goal of a legal system.

Cases falling outside this core of settled meaning, though inevitable, are nevertheless failures in the system.

[3] Admittedly, one can come up with various answers to the question of why a party would litigate a case falling in this core of settled meaning where it is clear (according to well-established, pre-existing rules, including constitutional ones) that that party will lose — (i) it may be an insurance company with many such similar cases in the pipeline wanting a definitive, and new, ruling; (ii) it may be a litigation tactic to deter other more arguable cases by showing you, the doctor ’s insurer say, will fight any and all lawsuits; (iii) the party, as in a custody dispute, may be prepared to clutch at any straw; (iv) it may be this is a chance to air a political grievance and, with luck, pick up some obiter support for the future; even (v) one or more judges on the highest court may have nurtured a reputation for emphasizing, say, fairness and justice over the fulfilling of reasonable, pre- existing expectations, and so encouraged parties to take a punt, as it were. Still, having noted these possibilities, one suspects such motivations are rare. Most cases reaching the highest court are those with strong arguments on both sides (with this caveat, that in some areas of law, such as bills of rights litigation, it may well be that a far higher percentage of cases than is usual fall into this category of having an arguable case on both sides).

[4] Hart, op. cit., fn. 1 above, p. 119, inter alia. Hart also calls this the “penumbra of uncertainty” (ibid., p. 131).

[5] Ibid., pp. 124, 126, 132, 141, 144, inter alia.

[6] Hart, op. cit., fn.1 above, pp. 149-150 (italics in the original). As an aside, it is plain from this passage that Hart accepted that judges sometimes make law. He in no way accepted the ‘noble lie’ that judges always merely find the correct answer. I note this because one common tactic of defenders of judicial discretion and judicial power is to say or imply that opponents (especially legal positivist opponents) still believe in the noble lie. In fact, legal positivist opponents are all too well aware of the scope for judicial law-making and judicial discretion. Their goal is to limit it as much as possible, not to deny it exists. Ironically, it is today’s foremost defender of judicial law-making power (though his argument involves denying this power exists), Ronald Dworkin, who comes closest to arguing that judges merely find — or should be aiming to find — correct answers that were always implicit in the wider body of law. See, for instance, Taking Rights Seriously, (Duckworth, 1977), chapter 13.

[7] As Professor Grant Huscroft of the University of Western Ontario Law School has remarked to me in conversation, it is somewhat surprising that judges are not even a little embarrassed by such close votes given their tendency to pronounce definitively that they, the judges, are the ones who know best what rights require and that only they can be trusted to say how rights should play out in practice and when they can safely be limited.

[8] See my Sympathy and Antipathy: Essays Legal and Philosophical (Ashgate, 2002), especially chapters 3, 12 and Concluding Remarks.

[9] See Jeremy Waldron, “The Irrelevance of Moral Objectivity” in R. George, ed., Natural Law Theory (Clarendon, 1992).

[10] And in the developed Western world only the United Kingdom, Israel and New Zealand can still be described as lacking written constitutions, though that may change in the UK if the EU becomes a federal state.

[11] I should note that even in jurisdictions with an overarching written constitution it is possible to claim some action or conduct is unconstitutional in a broader sense unrelated to the specific written constitution. That is, one can make a claim of unconstitutionality that is analogous to the sort of claims made in jurisdictions with unwritten constitutions.

[12] This, in turn, is connected to the fundamental idea that each generation, through its democratically elected representatives, should be left to decide for itself what is good, moral, proper, in keeping with fundamental rights, what laws to have, and anything else.

[13] As, of course, was done in enacting the Supreme Court Act 2003.

[14] See s. 268 (1)(f) of the Electoral Act 1993. Five other matters related to choosing the elected legislature and how long it can run before the next election must be held are also singly entrenched by s. 268.

[15] That follows from having a sovereign Parliament that is legally unlimited in what it can do provided it is done by properly enacted statute.

[16] See, for example, my Sympathy and Antipathy (op. cit., fn. 8 above); “The Author Doth Protest Too Much, Methinks” (2003) 20 New Zealand Universities Law Review 519; “Paying for the Comfort of Dogma” [2003] SydLawRw 4; (2003) 25 Sydney Law Review 63; “Oh That I Were Made Judge in the Land” (2002) 30 Federal Law Review 561; and “Turning Clark Kent into Superman: The New Zealand Bill of Rights Act 1990” [2000] OtaLawRw 3; (2000) 9 Otago Law Review 613.

[17] See, for instance, Hart, op. cit. fn. 1 above, pp. 206-207: “But perhaps a stronger reason for preferring the wider concept of law, which will enable us to think and say, ‘This is law but iniquitous’, is that to withhold legal recognition from iniquitous rules may grossly oversimplify the variety of moral issues to which they give rise .… A concept of law which allows the invalidity of law to be distinguished from its immorality, enables us to see the complexity and variety of these separate issues; whereas a narrow concept of law which denies legal validity to iniquitous rules may blind us to them.”

[18] See Reference re Amendment of the Constitution of Canada (1981) 125 DLR (3d) 1. There Prime Minister Trudeau’s plan to repatriate (and alter) the Canadian Constitution without the agreement of the Canadian provinces was held to be legal but in breach of constitutional convention. And that ruling was sufficient to force Trudeau back to the negotiating table with the provinces.

[19] For example, the Supreme Court of Canada is set up by statute but the judges themselves are protected under s. 96 of the constitution. A question, therefore, arises as to whether — since the constitution protects the composition of the court — it also precludes some or many changes to the legislation. And in the United States, the constitution there specifies the number of Senators per State and that they be chosen on a rolling six-yearly basis, ruling out proportional representation at least in choosing Senators.

[20] See s. 268 (2)(a) and see fn. 14 above and its accompanying main text.

[21] Which may be why the Prime Minister of the United Kingdom recently announced there would be a referendum in the UK on the proposed new EU constitution.

[22] This was the case in the UK in both World Wars and both times had cross-party support.

[23] This was the case in Canada and the 1984 general election there was called and fought on this issue on the ground that a specific mandate was needed before entering into it.

[24] See John Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980), especially chapter four.

[25] In New Zealand this boundary drawing is done by a Representation Commission. See the Electoral Act 1993, ss. 28-45.

[26] Here I follow Sir Karl Popper ’s views on proportional representation voting systems. They make it difficult for voters to punish those they dislike since elections generally involve parties gaining or losing a percentage of the popular vote not even in double figures. See, for example, Popper ’s invited article “Popper or Democracy”, The Economist (April 23rd, 1998), pp. 19-22, especially pp. 21-22:

“Proportional representation . . . may therefore have a detrimental effect on the decisive issue of how to get rid of a government by voting it out of office . . . . As a result, on election day none of the parties is dismissed, none is convicted.” Ibid., p. 22. MMP, with its closed lists, accentuates the problem. Politicians can lose — and have lost —constituency seats and yet because their party leader and leadership put them high up the list they nevertheless end up — and have ended up — in parliament, even in Cabinet (as is the case with Margaret Wilson). Of course, with FPP some MPs will themselves represent very safe constituencies which they are unlikely to lose, however unpopular their party. That said, compared to MMP their position is more precarious. (Cf. the 1989 election in Canada where the Conservatives went from being the majority government to holding just three seats.)

[27] See fn. 14 above and the accompanying main text.

[28] See the MMP Select Committee Review from 2001 which said “no” to any changes to MMP and “no” to a second referendum.

[29] Of course if that were the case then the change would be likely to pass through parliament with cross-party support, as was the case in Canada and Australia when they abolished the Privy Council.

[30] This Advisory Group was chaired by the Solicitor-General and appointed by the Attorney-General. It was comprised largely of the usual suspects — Presidents of the Law Society and Bar Association, other lawyers’ representatives, President of the Law Commission, Maori representatives, civil servants — but no business representatives and no one obviously opposed to abolition.

[31] The terms of reference did not include the gateway question of deciding whether it was even a good idea to abolish the Privy Council.

[32] See “Replacing the Privy Council: A New Supreme Court”, A Report of the Advisory Group to the Honourable Margaret Wilson, Attorney-General, April 2002 (Published by the Office of the Attorney-General).

[33] It needs to be realised that although the Chief Justice has always sat at the top of the judicial hierarchy in New Zealand, it has been arguably in a formal sense only. Before abolition final domestic appeals in New Zealand were heard by the Court of Appeal headed by a President. In practice, say during Sir Robin Cooke’s time as President of the Court of Appeal in the 1980s and 1990s, was there any doubt that the President was the more important and (save in a formal sense) senior judge than the Chief Justice? The point matters because by specifying in the Supreme Court Bill (and Act) that the existing Chief Justice would automatically have a place on the new court, but the President would not, the provision was not as politically neutral as it might have seemed on its face.

[34] This was Sir Paul Reeves. Governor-General Reeves was never a lawyer. He was an ex-Anglican Archbishop. Whatever expertise he was thought to bring to the table it was not legal expertise.

[35] See Jeremy Waldron, “Is the Rule of Law an Essentially Contested Concept (in Florida)?” (2002) Law and Philosophy 137.

[36] See, for instance, Grant Huscroft’s “The Charter, the Court, and the Limits of Progressive Interpretation” in Brodie and Huscroft (eds.), Constitutionalism in the Charter Era (LexisNexis, forthcoming) and my “The Author Doth Protest Too Much, Methinks” (2003) 20 New Zealand Universities Law Review 519.

[37] I set these out in “Turning Clark Kent into Superman: The New Zealand Bill of Rights Act 1990” [2000] OtaLawRw 3; (2000) 9 Otago Law Review 613; “Oh That I Were Made Judge in the Land” (2002) 30 Federal Law Review 561; “Paying for the Comfort of Dogma”

[2003] SydLawRw 4; (2003) 25 Sydney Law Review 63; and “The Effect of a Statutory Bill of Rights Where Parliament is Sovereign: The Lesson from New Zealand” in (eds. Campbell, Ewing and Tomkins) Sceptical Essays on the Human Rights Act 1998 (OUP, 2001), 375.

[38] See Tom Campbell, “Judicial Activism — Justice or Treason?” [2003] OtaLawRw 2; (2003) 10 Otago Law Review 307; Gregory Craven, “The High Court of Australia: A Study in the Abuse of Power”, 31st Alfred Deakin Lecture (Melbourne: Alfred Deakin Lecture Trust, Oct. 1997); and James Allan, “Paying for the Comfort of Dogma” [2003] SydLawRw 4; (2003) 25 Sydney Law Review 63.

[39] [1954] USSC 42; 347 US 483 (1954).

[40] See, for example, Richard Ekins “Judicial Supremacy and the Rule of Law” (2003) 119 Law Quarterly Review 127 and David Campbell and James Young “The Metric Martyrs and the Entrenchment Jurisprudence of Lord Justice Laws” (2002) Public Law 299.

[41] For more on the growth of judicial power see (eds. P. Russell and D. O’Brien)

Judicial Independence in the Age of Democracy (University Press of Virginia).

[42] An area that can be seen to be without bounds quite often. Consider, for example, issues that the political parties often differ on that, under the aegis of rights, can be pushed into the courts for resolution — for instance, same sex marriages in Canada and abortion in the US plus, say, collective bargaining rights and the permissibility of smacking.

[43] See Larry Alexander, ed., Constitutionalism: Philosophical Foundations (Cambridge University Press, 1998), in particular the introduction by Larry Alexander and the chapter by Richard Kay. If the purpose of a constitution is not to lock certain things in — a Bill of Rights, federalism, what have you — and make them immune from amendment by the regular statutory process, then the only purpose I can see for it is to transfer power to the point-of-application interpreters of that constitution, namely the unelected judiciary.

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