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Smillie, John --- "Who wants Juristocracy?" [2006] OtaLawRw 2; (2006) 11 Otago Law Review 183

183

Who Wants Juristocracy?* John Smillie* *

For the past 15 years or so we have been experiencing a progressive shift away from a parliamentary democracy (in which parliament is acknowledged as the supreme lawmaking authority) towards a constitutional democracy in which legislation as well as delegated government action is subject to judicial review for compliance with broadly defined standards set out in a constitutional document carrying a higher status than an ordinary statute. For all practical purposes, the New Zealand Bill of Rights Act 1990 is a constitutional document of that kind.

Currently, of course, our judges' powers are limited. New Zealand courts can invoke s6 of the Bill of Rights Act to read down a statutory provision so that it complies with the Bill of Rights Act, or failing that, exercise their self-asserted power to declare the legislation non-compliant.1 The next step in the process of constitutionalisation is to entrench the guaranteed rights against amendment by a simple parliamentary majority, and authorise the courts to strike down inconsistent legislation as unconstitutional and invalid. We seem to be moving towards an American-style "juristocracy"2 in which the judges of the highest court have the final say on controversial issues of morality and social policy.

I oppose this slide towards "juristocracy" or "legal constitutionalism".3

I The Case Against Constitutionalism

1. Undemocratic

It is inherently undemocratic to permit a small group of non-elected, mostly male, former lawyers to substitute their views on highly contestable moral and social issues for those of the democratically elected parliament.4 Conversion of contentious political issues into legal issues allows a narrow class of professionals - lawyers, judges, academics - to shape the contours of political debate. Direct public discussion of the merits of controversial government action is replaced by protracted judicial proceedings where the debate is conducted in terms of "proportionality" and the degree of deference that the court ought to pay to the particular political resolution under examination.5

Address to the Legal Research Foundation's New Zealand Legal Method III Conference on "Law, Social Policy, and the Courts", Auckland, 6 August 2005. Professor of Law, University of Otago.
1 Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA).

  1. The term "juristocracy" is borrowed from the title of Ran Hirschl's valuable book
    Towards Juristocracy: The Origins and Consequences of the New Constitutionalism
    (Harvard UP, Cambridge, 2004).

3 See A Tomkins, Our Republican Constitution (Hart Publishing, Oxford, 2005).

  1. Ironically, if that small group of former lawyers happens to disagree among
    themselves, they resolve the dispute democratically - they vote on the issue and
    the majority position prevails even in the face of a strident dissent by the minority.
  2. Compare Secretary of State for the Home Department v Rehman [2003] 1 AC 153 (HL)
    with A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68 (HL); and see
    Lord Steyn, "Deference: a Tangled Story" [2005] PL 346.

184 Otago Law Review (2006) Vol 11 No 2

2. Institutional unsuitability

Judges are not well-equipped to decide controversial issues of morality and social policy. They are ill-suited by virtue of their training, their life experience, in most cases their social background, and most importantly the limited range of relevant social data made available to them through our adversary judicial process.

Of course the more sensitive members of the judiciary feel uneasy in the face of criticism that in applying constitutional rights expressed in terms of vague moral generalisations they are merely imposing their own moral prejudices on the rest of us. So judges may claim to be giving effect to "community values", or invoke the authority of international human rights jurisprudence, in an attempt to cast a veneer of legitimacy, neutrality and legality over what are essentially unconstrained political choices. But reliance by New Zealand judges on the experience of foreign tribunals in applying broad human rights norms is strangely ironic given that the main justification for abolishing the right of appeal to the Privy Council was that foreign (even British!) judges cannot possibly appreciate the unique values, needs and aspirations of New Zealanders. And if the object is indeed to ensure that our law reflects and expresses the values of the local New Zealand community, I personally would have more faith in the intuitive assessments of our elected politicians than those of our judges. After all, politicians focus most of their energy on divining and reflecting the prevailing public sentiment on controversial issues.

Of course no single individual, or group of individuals, is perfectly equipped to make binding choices for the rest of us. The doctrine of unforeseen consequences always casts a long shadow. In the words of Arthur Allen Leff:

If a state of affairs is the product of n variables, and you have knowledge of or control over less than n variables, if you think you know what's going to happen when you vary 'your' variables, you're a booby.6

Nevertheless, it seems to me that when controversial decisions are left to a large group of elected politicians who are attuned to discerning shifts in public opinion and are backed by the data-collecting resources of departmental staff and select committees, we must surely improve our chances of taking account of the critical variables and minimising the risk of unforeseen consequences.7 And if the wrong decision is made and undesirable consequences follow, government officials (and parliament itself if necessary) can act swiftly to adjust the policy whereas a court must wait for another similar case before it can revisit the issue. And, ultimately, if we don't like parliament's choice and the government refuses to take corrective action we can vote them out of office.

So, all things considered, leaving ultimate responsibility for determining controversial social and moral issues in the hands of parliament seems to me to be the "least bad" solution.

  1. "Economic Analysis of Law: Some Realism about Nominalism" (1974) 60 Virginia
    LR 451,476.
  2. See J Waldron, Law and Disagreement (Clarendon, Oxford, 1999) 85, 136-138
    discussing Aristotle's "doctrine of the wisdom of the multitude".

Who Wants Juristocracy? 185

3. Constitutionalism encourages judicial activism on a wide front

The effects of a shift towards American-style constitutionalism are not confined to the area of constitutional law as traditionally understood. Constitutionalism encourages judicial activism on a much wider front.

(a) Constitutionalism liberates courts from the traditional "ultra vires-based"
approach to judicial review of delegated government action with its strong
focus on procedure and process, and encourages judges to adopt more
demanding standards of review that require officials to justify the
substantive reasonableness of government action by reference to both
domestic and international human rights norms.8
(b) Formal guarantees of fundamental rights in constitutional documents
encourage judges to discover additional rights that are somehow
"implicit" or "embedded" in the express guarantees.9
(c) The impact of the New Zealand Bill of Rights Act 1990 is not confined to
disputes between citizen and state; it has an indirect "horizontal" effect
on what we used to think of as purely private law disputes between
citizens. Since common law rights and duties must now be tested for
compliance with the Bill of Rights Act, both the existence and the content
of many established common law rules are entirely contingent on the
outcome of the judicial balancing exercise mandated by s5 of the Bill of
Rights Act. This is not conducive to consistent and predictable
outcomes.10

See D Dyzenhaus, M Hunt and M Taggart, "The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation" (2001) 1OUCLJ 5; M Taggart, "Administrative Law" [2003] NZ Law Rev 99,114-117; C Geiringer, "Tavita and All That: Confronting the Confusion Surrounding Unincorporated Treaties and Administrative Law" (2004) 21 NZULR 66.

For example, Simpson v Attorney-General (Baigent's case) [1994] 3 NZLR 667 (implied right to compensation for breach of New Zealand Bill of Rights Act 1990); Police v Kohler [1993] 3 NZLR 129 (the right to consult a lawyer conferred by s23(1)(b) of the New Zealand Bill of Rights Act implies an associated right to privacy and confidentiality). See also Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1,54-55 where Tipping J found that "the values that underpin s21" of the Bill of Rights Act (which confers the right to be free from unreasonable search or seizure) "can, by reasonable analogy, be extended to unreasonable intrusion into personal privacy which might not strictly amount to search or seizure"; and Lai v Chamberlains infra n 10. For Australian examples, see A Stone, "Australia's Constitutional Rights and the Problem of Interpretive Disagreement" (2005) 27 Sydney LR 29. Compare Lange v Atkinson [2000] NZCA 95; [1998] 3 NZLR 424 (CA), [2000] 3 NZLR 385 (CA) (freedom of expression requires an extended privilege to defame MPs) with Jennings v Buchanan [2002] NZCA 363; [2002] 3 NZLR 145 (CA), affirmed [2004] UKPC 4; [2005] 2 NZLR 577 (PC) (protection of reputation requires abridgment of MP's freedom of expression) and Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA) (by 3 to 2: privacy interests may displace freedom of expression). See also Lai v Chamberlains [2005] 3 NZLR 291 (CA) at para [175] where Hammond J, delivering the leading majority judgment found that s27 of the Bill of Rights Act, which on its face affirms common law rights to fair procedure ("natural justice") and judicial review of decisions of public authorities, "overtly supports a general right of access to our courts" which requires judicial abolition of the centuries-old barristers' immunity from liability for negligence.

186 Otago Law Review (2006) Vol 11 No 2

In fact, as applied by the majority of the Court of Appeal in Hosking v Runting,11 judges get the best of all worlds under the New Zealand Bill of Rights Act. They enjoy the power to hold the executive branch of government (and the legislature as well, through assertion of the power to issue a declaration of inconsistency) strictly to account by direct application of the guaranteed rights, while preserving maximum discretion in the exercise of their own lawmaking function by treating the expressly affirmed rights as of merely indirect (non-determinative) relevance to development of the common law.12

(d) Constitutionalism encourages a "human rights-conscious" approach to interpretation of "ordinary" statutes, giving results that reflect the judge's perception of current social values and needs. So in a recent case before the New Zealand Court of Appeal, Hammond J invoked an incipient international human right "to know one's genetic origins" to support a flagrant departure from the plain meaning and intent of s16(2) of the Adoption Act 1955.13

4. Erosion of confidence in the judiciary

Increasingly frequent and open involvement in controversial moral and political issues will result in judges being identified with particular philosophies, interests and causes, and this will lead inevitably to a decline in public confidence in the impartiality of the judiciary and a loss of respect in the court system generally. This tendency is exacerbated when serious splits appear in the ranks of the higher judiciary in relation to controversial social issues,14 or even as to the proper approach to interpretation of the foundational constitutional document itself.15

Inevitably, of course, the courts' intrusion into controversial political issues will bring the judges into conflict with the politicians. Unhappily, this has already become apparent in New Zealand.16

11 Ibid.

  1. See further A Geddis, "The Horizontal Effects of the New Zealand Bill of Rights
    Act, as applied in Hosking v Runting" [2004] NZ Law Rev 681, esp 699-701.
  2. HvY [2004] NZCA 289; [2005] NZFLR 152, criticised by M Henaghan, "Where's the law in family
    law?" [2005] NZLJ47. The decision has now been reversed by the Supreme Court:
    Hemmes v Young, 15 July 2005, [2005] NZSC 41.
  3. Eg R v Pora [2000] NZCA 403; [2001] 2 NZLR 37 (retrospective penalties); Hosking v Runting [2005] 1
    NZLR 1 (right to privacy); R (ProLife Alliance) v British Broadcasting Corporation
    [2003] UKHL 23; [2004] 1 AC 185 (freedom of expression); Roodal v State of Trinidad and Tobago [2005]
    1 AC 329; Boyce v The Queen [2005] 1 AC 401; Mathew v State of Trinidad and Tobago
    [2004] UKPC 33; [2005] 1 AC 433 (mandatory death penalty); Chaoulli v Attorney-General of Quebec
    [2005] SCC 35 (whether denial of access to private medical insurance infringed
    rights to life and security).
  4. Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260; Moonen v Film and Literature Board
    of Review [1999] NZCA 329; [2000] 2 NZLR 9,16-17[2002] NZCA 69; , [2002] 2 NZLR 754, 760.

w For example, the government's response to Attorney-General v Ngati Apa [2003] 3

NZLR 643 (the "foreshore and seabed" decision); the response of the Privileges Committee of the House of Representatives to Jennings v Buchanan [2002] NZCA 363; [2002] 3 NZLR 145 (CA), affirmed [2004] UKPC 4; [2005] 2 NZLR 577 (PC) - see Report of the Privileges Committee

Who Wants Juristocracy? 187

It is also inevitable that the process for appointing judges to our higher courts will become politicised and this will further erode confidence in their impartiality. In America, of course, the right to appoint judges to the Supreme Court and thereby dictate the political philosophy of the bench is regarded as one of the most important powers of government. Indeed, many Americans believe that the best reason for voting in the presidential election is that the winner will control federal judicial appointments for the next four years.

5. Constitutionalism encourages distrust of the state

Judicial review of legislation for compliance with negative rights affording protection for individuals against an aggressive state fosters an unhealthy distrust of government and the exercise of state power. Judicial review empowers judges to demarcate (and inevitably expand) the "private sphere" of the individual and insulate this against intrusive government action on behalf of collective interests. It encourages a "small government" model and a suspicion of centralised authority. Yet for most of New Zealand's history the central government has commanded respect as a positive force for good rather than a potential source of oppression.

6. Constitutionalism is costly

Constitutionalism increases the complexity and duration of litigation and increases the cost of administering justice. So the past decade has seen a steady increase in the level of public expenditure on the New Zealand court system and a significant increase in the number of judges.

Over the period 1996/97 to 2003/04 total public expenditure on the court system rose (after allowing for inflation) by 28 per cent or an average 3.6 per cent per annum. This rate of growth exceeded the growth in the overall economy by about 1 per cent per annum.17 Between 1996 and 2005 the number of permanently appointed judges increased from 158 to 183 (15.8 per cent).18

on a Question of Privilege Referred 21 July 1998 Concerning Buchanan v Jennings, May 2005; the sharp public debate between the Chief Justice, Dame Sian Elias, and the Deputy Prime Minister (and now Attorney-General), Dr Michael Cullen, concerning the foundation and status of the doctrine of parliamentary sovereignty - Elias, "Sovereignty in the 21st Century: Another Spin on the Merry-go-Round" (2003) 14 Public LR148; Cullen, "Parliamentary Sovereignty and the Courts" [2004] NZLJ 243.

P Barry, Indicators of Performance and Costs in the Courts System (Taylor Duignan Barry Ltd, 2004) para 3.2, published as Appendix D to Law Commission Report 85, Delivering Justice for All: A Vision for New Zealand Courts and Tribunals (LC 85, 2004).

During the period 1996 to 2005 the number of permanent appointments to the higher courts (High Court, Court of Appeal, Supreme Court) increased from 37 to 43 (16.2%), while the total number of permanent judges appointed to the District Court, Employment Court, Environment Court (Planning Tribunal in 1996) and Maori Land Court increased from 121 to 140 (14.7%). In addition, there is a fluctuating number of Acting and Temporary Judges.

188 Otago Law Review (2006) Vol 11 No 2

But despite this steady increase in the resources allocated to the court system, a study commissioned by the Law Commission found that during the four years from 2000 to 2003 the number of cases filed and disposed of fell, while waiting times and court sitting time per case increased.19

At the same time, judgments have become longer and more complex. Analysis of judgments delivered by the Court of Appeal in reported cases involving issues of statutory interpretation shows that the average length of the judgments has doubled since 1976 (from 8.2 pages per case in 1976 to 16.5 pages per case in 2004) and increased by 46 per cent since 1996 (from 11.3 pages in 1996 to 16.5 pages in 2004).20

7. Constitutionalism makes a minimal contribution to social justice

Constitutionalism (at least in its present and immediately envisaged form) makes a minimal contribution to the cause of remedying social injustice.

(a) The great bulk of cases involving the New Zealand Bill of Rights Act21
concern criminal due process rights which largely duplicate pre-existing
common law and statutory procedural protections against arbitrary
exercise of police power. This duplication serves merely to provide
additional grounds for legal argument and appeal in criminal cases,
resulting in increased delays and costs.
(b) Newly recognised rights which have no parallel at common law (eg the
non-discrimination rights and the right to manifest one's religion) raise
issues such as gender and sexual preference that are of pressing concern
to certain groups within society but are far from matters of life and death.
(c) New Zealand courts have been extremely reluctant to interpret the New
Zealand Bill of Rights Act as imposing positive obligations on government
to take any particular action to enable individuals to enjoy the guaranteed
rights.22

19 Supra n 17 at paras 2.2,2.3.

  1. Updating the study by James Allan, reported in "Statutory Interpretation and the
    Courts" (1999) 18 NZULR 439. Analysis of the NZLR for 2004 disclosed 34 cases
    (out of a total of 66 Court of Appeal decisions reported) raising issues of statutory
    interpretation. The average length of the reported judgments in these cases is 16.5
    pages.
  2. According to Hirschl in Towards Juristocracy supra n 2 at 109, 71 per cent of Court
    of Appeal cases involving the New Zealand Bill of Rights Act decided between
    1990 and 2002 concerned criminal due process rights.
  3. For example, Lawson v Housing New Zealand [1997] 2 NZLR 475, 494-495 (CA)
    (right to life guaranteed by s8 does not embrace a right to subsidised housing);
    Shortland v Northland Health Ltd [1998] 1 NZLR 433 (CA) (s8 does not require the
    state to provide an individual patient with access to dialysis treatment); Mendelssohn
    v Attorney-General [1999] NZCA 67; [1999] 2 NZLR 268,273 (CA) (ss13-1 7 New Zealand Bill of Rights
    Act do not impose positive duties on the state); Attorney-General v Daniels [2003] 2
    NZLR742 (CA) (In the High Court, BaragwanathJheld that thes19rightto freedom
    from discrimination does not impose a positive duty on the state to provide children
    with special educational needs with the same free education as other children.
    On appeal, the Court of Appeal declined to consider the issue, citing lack of time
    to hear oral submissions (para 4)).

Who Wants Juristocracy? 189

Consequently the New Zealand Bill of Rights Act did nothing to arrest or mitigate the disastrous social consequences of the massive increase in income inequality that New Zealand experienced in the late 1980s and 1990s as a result of the aggressive free market economic policies pursued by successive governments.23 In fact the New Zealand Bill of Rights Act has had no meaningful impact on poverty or on health or educational disadvantage. It is not an effective tool against real social injustice.

So who benefits from judicial enforcement of negative rights of individuals against the state? The benefits seem to be confined to three classes of persons.

  1. Criminals;
    1. Articulate, well-educated members of the professional class with the time
      and resources to organise and fund litigation to protect or advance
      sectional interests;
  2. Lawyers, judges and academics.

II The Role of the Courts

What is the proper role of the courts in the face of social change? In my view the role of the courts is to act as a conservative, stabilising force through consistent application of established norms that reflect settled expectations.

Instead of seeing themselves as being engaged with parliament in some grand collaborative lawmaking enterprise,24 the judges should return to the role they performed efficiently and well for centuries. They should see their primary responsibility as being to expound, apply and preserve the inherited common law with its strong (albeit indirect and historic) democratic foundation in the customary practices of the English people. They should treat with suspicion legislation that seems to abrogate or derogate from entrenched common law principles and entitlements, or established expectations based on longstanding statutory provisions, and interpret the legislation strictly to avoid that result.25

Certainly, the courts should not look to parallel legislative developments (including the New Zealand Bill of Rights Act) for assistance or guidance in

  1. Between 1985 and 2000, New Zealand experienced the steepest increase in income
    inequality of any OECD country: Hirschl, Towards Juristocracy, supra n2 at 157-
    158. See further, D O'Dea, "The Changes in New Zealand's Income Distribution"
    New Zealand Treasury Working Paper 00/13 (2000) and D Hyslop & D Maré,
    "Understanding Changes in the Distribution of Household Incomes in New
    Zealand Between 1983-86 and 1995-98" New Zealand Treasury Working Paper
    01/21 (2001); both available from http://www.treasury.govt.nz/workingpapers/
  2. Compare P Joseph, "Parliament, the Courts, and the Collaborative Enterprise"
    (2004) 15 KCLJ 321; K Roach, "Constitutional and Common Law Dialogues
    Between the Supreme Court and Canadian Legislatures" (2001) 80 Can Bar Rev
    481.
  3. See, for example, Choudry v Attorney-General [1999] 2 NZLR 582, 592-3 (CA); R v
    Secretary of State for the Home Department ex parte Simms [1999] UKHL 33; [2000] 2 AC 115,131 (HL);
    Zaoui v Attorney-General [2004] NZCA 228; [2005] 1 NZLR 577, 646, 653 (SC). In practical terms,
    Lord Cooke of Thorndon may be right when he suggests that parliament may
    need to use "unrealistically specific language" to override "truly basic human
    rights": "The Basic Themes" (2004) 2 NZJPIL 113,114.

190 Otago Law Review (2006) Vol 11 No 2

deciding what the common law demands. Such an approach gives inherently unpredictable results since legislative developments can always be construed either as encouraging or as pre-empting further judicial development of the common law.26 And the practice is unconstitutional - it is not the courts' job to anticipate what Parliament may or may not want.

Instead, judges should develop the common law incidentally in the course of employing the traditional techniques of the common lawyer - reasoning by analogy from decided cases, inducing principles that explain a number of particular instances, and reasoning deductively from those principles - to resolve uncertainties and conflicts and adapt established principles to meet new problems. Judges should go no further than necessary to resolve the particular issues presented for decision, and decide those issues on the narrowest possible grounds. They should discourage copious citation of foreign materials and presentation of empirical data, forecasts and predictions.

Of course you may object that I am advocating a return to the declaratory theory of common law adjudication, a theory that has been dismissed as a fairy tale.27 But while no one today would deny that judges do, on occasion, make new law, viewed as an ideal, as an aspirational theory of adjudication, the declaratory theory offers many advantages. By postulating that the existing law, properly considered, provides an answer to every problem (albeit not necessarily a single right answer28), the declaratory theory demands that the judge at least try to put aside his or her own personal prejudices and predilections. General acceptance of the declaratory theory forces the activist judge to resort to hypocrisy, thereby limiting their freedom and power.29 Furthermore, formal rule-based adjudication tends to promote certainty and predictability in the law, and by limiting the range of facts and arguments relevant to the outcome provides a manageable and efficient means of resolving disputes that conserves the resources of judges, lawyers, litigants and society generally.

As to statutory interpretation, except in relatively rare cases of genuine ambiguity or absurdity, judges should give effect to the ordinary literal meaning of the provision in question unless, of course, a literal interpretation derogates from firmly established common law rights or settled expectations based on longstanding legislation, in which case the provision should be construed strictly so as to avoid or limit the derogation. In cases of genuine ambiguity or where the literal meaning would give rise to absurd consequences, the court should interpret the provision so as to give effect to the intention of parliament as revealed by the text and structure of the Act itself. The courts should avoid reference to extrinsic aids to interpretation, and ignore legislative attempts to direct them as to how they should exercise their constitutional function of interpreting statutes. Just as s5(j) of the Acts Interpretation Act 1924 was largely

  1. See, for example, the use made of privacy legislation in the judgments delivered
    in Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA).

27 Lord Reid, "The Judge as Law Maker" (1972) 12 JSPTL 22.
28 Compare R Dworkin, Taking Rights Seriously (Harvard UP, Cambridge, 1977) ch 13.

  1. R Bork, "Tradition and Morality in Constitutional Law" in David M O'Brien (ed),
    Judges on Judging: Views from the Bench (CQ Press, Washington DC, 2004) 158 at
    163-164.

Who Wants Juristocracy? 191

ignored,30 so too should s5 of the Interpretation Act 1999 and s6 of the New Zealand Bill of Rights Act 1990.

In short, parliament and the judiciary should stop trespassing on each other's territory. It is parliament's job to formulate social policy and effect the required changes to the law through legislation. The courts' constitutional role is to expound and preserve the common law and interpret and apply legislation.

III Advice to Parliament

I have five pieces of advice for our legislators.

1. Repeal the New Zealand Bill of Rights Act

Parliament should repeal the New Zealand Bill of Rights Act 1990 and take care not to fall into the trap again of attempting to regulate behaviour by enacting vague open-ended standards that leave judges with virtually unconfined discretion at the point of application.

2. Reduce the number of judges

A recent study of the Israeli judiciary indicated that as more judges are appointed to a court, the productivity of individual judges declines.31 Like workers in most other occupations, it seems that judges work harder and more productively under pressure. So appointment of more judges does not help clear a backlog of cases - in fact it is the existence of a backlog that pressures judges into completing more cases. The findings in the report prepared for the Law Commission in 2004 suggest that this holds true for the New Zealand judiciary as well.32 Indeed the Law Commission concluded that our court system "appears to be doing less work and doing it less efficiently".33

It would be comforting to think that even if judicial output increases under workload pressure, this is matched by a deterioration in the quality of the product. Unfortunately this is not supported by the Israeli study which found that as the productivity of trial judges increased in response to caseload pressure, the rate of appeals from their decisions actually declined.34 So the moral would seem to be: reduce the number of judges and increase both output and quality.

But what was the response of the New Zealand government to the Law Commission's findings? Naturally, it amended the Judicature Act and the District Courts Act to allow for the appointment of more judges!35

30 See J F Burrows, Statute Law (3rd ed, LexisNexis, Wellington, 2003) 133-135.

  1. M Beenstock and Y Haitovsky, "Does the Appointment of Judges Increase the
    Output of the Judiciary?" (2004) 24 Int Rev of Law & Economics 351.

32 See text accompanying nn17-19 supra.

  1. Law Commission, Delivering Justice for All: A Vision for New Zealand's Courts and
    Tribunals (LC 85,2004) Part 9, para 24.

34 Supra n 31 at 366.

  1. Judicature Amendment Act 2004, s3(1) (increasing the maximum number of
    permanent higher court judges from 43 to 56); District Courts Amendment Act
    2004, s3(1) (increasing the maximum number of permanent district court judges
    from 123 to 140).

192 Otago Law Review (2006) Vol 11 No 2

3. Abolish the Supreme Court

As a first step to reducing the number of judges, Parliament should abolish the Supreme Court. The Supreme Court is simply a wasteful extravagance -one right of appeal to a competent and consistent tribunal is quite enough to meet the reasonable demands of justice. After all, the highly sophisticated Roman legal system functioned perfectly well during much of its classical period with no rights of appeal at all.36 Wisely, the Romans focused their efforts and resources on ensuring one competent trial of the merits of the case.

4. Abolish the position of judges' clerk

The office of judge's clerk is a relatively recent import from the United States, where it has done untold harm for generations. Judges should be required to do all their own research and judgment-writing. This, combined with increased caseloads, should encourage judges to rely more on the submissions of counsel and less on their own "independent" research, which in turn will result in production of shorter and clearer judgments in less time.

The top law school graduates would also benefit. They would not be lured by the artificial prestige associated with appointment as a judge's clerk into spending up to two years wasting their time as clerks when they could be setting about learning the craft of lawyering at the sharp end of the profession.

5. Train career judges

It may be time the government thought seriously about ending the current practice of appointing our judges from the ranks of successful barristers and instead adopting the European practice of appointing and training career judicial officers directly from law schools.

The problem is that many of our judges (particularly our superior court judges) consider themselves to be, and most probably are, over-qualified for the role that society requires of them. People who rise to the top of their profession as barristers tend to be not only intelligent and articulate, but also confident, energetic and highly competitive. On appointment to the bench, many are not content to serve as mere custodians of the legal system focusing on consistent application of settled norms to careful findings of fact. Instead they want to be architects of the legal system and engage with high level philosophy, political theory, economics, sociology and ethics as they actively shape the law to conform with their perceptions of society's needs. Many judgments read as if they were written for other judges, or for academics, rather than for the litigants.

We may be better served by career judicial officers on the European model. In Europe, law school graduates are admitted directly to judicial colleges where they train, then start work under supervision and work their way up through the ranks of the judiciary. Judges from this background can be expected to have a more modest and realistic view of their role.

Lord Rodger of Earlsferry, "What are Appeal Courts For?" [2004] OtaLawRw 3; (2004) 10 Otago LR 517.

Who Wants Juristocracy? 193

IV An Alternative Prescription

Even though I have spent most of my life in the deep south of New Zealand I realise that my recommendations for change are not likely to find a sympathetic ear in Wellington. So I have an alternative prescription for you to consider.

If you really believe that judges have a valuable role to play in advancing the cause of social justice in this country, you should not settle for the limited catalogue of negative rights presently guaranteed by the New Zealand Bill of Rights Act 1990. You should be lobbying hard for the New Zealand Bill of Rights Act, and any future entrenched Bill of Rights, to be extended to include positive economic and social rights such as the right to work, rights to adequate food and housing, and rights to reasonable standards of medical care and education. After all, you will want to make sure that our judges are charged with monitoring the really important governmental decisions that impact directly on these most vital human needs.

Many, perhaps most, states now include guarantees of economic and social rights in their written constitutions, and as a party to the International Covenant on Economic, Social and Cultural Rights, New Zealand has undertaken to take steps "to the maximum of its available resources" to achieve "the full realisation of the rights recognized in the ... Covenant by all appropriate means, including particularly the adoption of legislative measures."37 And of course, back in 1988 in its Final Report on the White Paper proposing a Bill of Rights for New Zealand, the Justice and Law Reform Select Committee recommended that basic economic and social rights be included in the Bill.38 However this recommendation was not taken up by government.39

We can anticipate the familiar objections. Some argue that economic and social rights are somehow not as important as civil and political rights. While state satisfaction of basic social and economic needs is no doubt a good thing, failure to ensure this is not an injustice of the same order as the human rights violations of a police state.40 But as the New Zealand Justice and Law Reform Committee properly recognised, "effective exercise of civil and political rights depends on securing an adequate standard of nutrition, housing, health care and education."41 In a very real sense, economic and social rights are prior to and more fundamental than other rights.42

Furthermore, many would argue that these economic and social rights are under more serious threat in New Zealand today than the civil and political rights guaranteed by the New Zealand Bill of Rights Act. Certainly, it seems more likely that a future New Zealand government will revert back to the free

37 International Covenant on Economic, Social and Cultural Rights, Art 2.

  1. Final Report of the Justice and Law Reform Committee on a White Paper for a Bill
    of Rights for New Zealand (1988) pp 4 and 10.
  2. Sir Geoffrey Palmer has claimed credit for blocking this recommendation in the
    government caucus committee: G Palmer, New Zealand's Constitution in Crisis:
    Reforming our Political System (John McIndoe, Dunedin, 1992) 57.

40 Eg, M Cranston, What are Human Rights? (Bodley Head, London, 1973) 68.
41 Supra n 38 at p3.

  1. See K D Ewing, "Social Rights and Constitutional Law" [1999] Public Law 104,
    esp 114-115 and the sources there cited.

194 Otago Law Review (2006) Vol 11 No 2

market/ user pays economic policies of Roger Douglas and Ruth Richardson than legislate to authorise torture, or capital punishment, or indefinite detention without trial, far less the killing of all blue-eyed babies. With a period of slower economic growth in prospect and the major political parties under pressure from upper and middle class voters to offer meaningful tax cuts, there is a very real prospect of reduced government spending in the critical social areas and this will impact heavily on the poorest and most vulnerable members of our society.

A second common objection is that judicial enforcement of economic and social rights requires direct judicial involvement in determining how society's limited resources should be allocated. This would infringe too far on democratic prerogatives and impose on the courts a task for which they are completely ill-suited.43 But of course all rights adjudication has allocative consequences.44 Indeed judicial enforcement of negative rights against the state involves a significant reallocation of social resources to the bureaucracy and the legal profession. And the criticism that lawyer /judges are not well-equipped to make critical allocative decisions can be met by substituting for the present Supreme Court a special Constitutional Court comprising a majority of non-lawyers who can draw upon a much wider range of knowledge and experience.

While it is true that a court that sets and then attempts to enforce precise target levels of achievement risks becoming entangled in the detailed administration of social programmes,45 there are alternative approaches which are less intrusive while still imposing valuable checks on government priority-setting. For example, the Constitutional Court of South Africa interpreted the South African Constitution as imposing a duty on the state to provide a reasonable programme for ensuring access to housing by poor people including, as a first priority, emergency relief for those in greatest need.46 So too in New Zealand, an extended Bill of Rights could enable our Constitutional Court to review for reasonableness the priority given by government to programmes designed to provide the most deprived members of our society with the basic necessities of life.

At this point, the more cynical among you may object that even if a Constitutional Court were to instruct the New Zealand government to give a much higher priority to meeting the needs of our most deprived citizens, and the government was prepared to repeal the Fiscal Responsibility Act 1994 and act upon that instruction, as a practical matter the government would be unable

  1. See, for example, Sir John Laws, "The Constitution: Morals and Rights" [1996]
    Public Law 622 at 628-629; D Beatty, "The Last Generation: When Rights Lose
    Their Meaning" in D Beatty (ed), Human Rights and Judicial Review (M Nijhoff,
    Dordrecht, 1994) 349-354.
  2. A Tompkins, Our Republican Constitution (Hart Publishing, Oxford, 2005) 24-25; S
    Homes and C Sunstein, The Cost of Rights (W W Norton, New York, 1999).

45 R Sandler and D Schoenbrod, Democracy by Decree (Yale UP, New Haven, 2003).

  1. Republic of South Africa v Grootboom [2000] ZACC 19; (2000) 11 BCLR 1169, (2001) 1 SA 46 (CC) and
    see the discussion by C Sunstein, Designing Democracy: What Constitutions Do
    (Oxford UP, New York, 2001) ch 10. See also Minister of Health v Treatment Action
    Campaign (2002) 10 BCLR 1033 (CC): government ordered to remove the restrictions
    preventing the drug Nevirapine being made available to all pregnant women who
    carry HIV/AIDS in order to reduce the risk of transmitting the disease to their
    unborn children.

Who Wants Juristocracy? 195

to reallocate sufficient resources over a sufficient period of time to make a major and lasting impact on the problem. For any government's ability to increase taxation and allocate a much larger share of the nation's resources to provision of social services is severely constrained by powerful international forces such as the World Bank, the International Monetary Fund, the World Trade Organisation, APEC, the OECD, the international credit rating agencies and the polices of our major trading partners.

In fact the cynic might speculate that our political elite, appreciating the strength of the external constraints on progress towards substantive equality and social justice, promotes constitutionalism as a diversion. A commitment to negative rights against the state allows politicians to embrace the rhetoric of human rights while diverting attention from the ever-increasing concentration of the nation's wealth and resources in the hands of a small minority.

So if you are really serious about securing and maintaining reasonable minimum living standards in New Zealand and ensuring that there is no repetition of the social distress and dislocation that resulted from the economic policies of the late 1980s and 90s, you will not only campaign to extend the Bill of Rights Act to include basic economic and social rights, but you will also join people like Jane Kelsey47 and lobby for New Zealand to withdraw from the World Trade Organisation, APEC and the OECD, to ignore the International Monetary Fund and the World Bank, to discontinue efforts to cement bilateral free trade agreements with China and the US, to increase income tax rates, and to erect protective trade barriers against the importation of cheap foreign clothing and manufactured goods.

You may object that such action would quickly return us to the boring social conformity of the 1950s and 60s. This is true. But at least during that period in New Zealand's history everyone who wanted to work had a job, mothers of young children did not have to work to keep households afloat, the rates of violent crime and theft were much lower, everyone had prompt access to a reasonable level of health care, the state system of free education was both free and educational, inequality of income was much less marked, and certainly there was no permanent underclass resigned to life as beneficiaries of the state. To be sure, there wasn't the same range of fancy cars available and a cup of good coffee wasn't available on nearly every street corner. But that may seem a small price to pay for real, substantive social justice.

J Kelsey, Reclaiming the Future: New Zealand and The Global Economy (Bridget Williams Books, Wellington, 1999) esp ch 10.



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