Sunday, August 08, 2004

Waitangi and the Separation of Power

In the controversy surrounding Haami Piripi's submission to the Seabed and Foreshore Bill, it seems that an important point has been lost. What captured everyone's attention was Mr. Piripi's warning to New Zealanders that
This country could be brought to its knees by internal conflict and perhaps civil war over the coming decades as a direct result of this bill.
But Mr. Piripi said a few other things as well, and in light of the current war of words between the Clark government and the new Supreme Court judiciary, it might be well worth taking a closer look at what Piripi's comments can tell us about the relationship of the Treaty of Waitangi to questions of judicial independence and the doctrine of the separation of powers. Interested?

According to the Sunday Star Times,
the submission says the foreshore bill, which puts the coastline in Crown ownership and prevents Maori seeking title to it, "destroys any confidence we might have in parliament and in government to govern fairly in this country.
For the record, I'm inclined to agree with Mr. Piripi. I think that the Foreshore and Seabed Bill represents the expropriation of customary rights and the denial to Maori of due process under the law. Such an arbitrary and clearly unjust law naturally erodes confidence in the ability of parliament to legislate fairly. And it calls into question the extent to which the Crown is fulfilling its obligations to Maori under the Treaty of Waitangi. No less an authority than the Watangi Tribunal itself warns that the Clark government's Seabed and Foreshore policy is fundamentally flawed. In its Report on the Government's Foreshore and Seabed Policy, the Tribunal comes down hard:
These are fundamental flaws. The policy clearly breaches the principles of the Treaty of Waitangi. But beyond the Treaty, the policy fails in terms of wider norms of domestic and international law that underpin good government in a modern, democratic state. These include the rule of law, and the principles of fairness and non-discrimination.
Let us remind ourselves what is at stake. The Treaty of Waitangi is not like any other treaty. It is the legal basis of Crown sovereignty in New Zealand. If the Crown fails to honour the Treaty, it puts the rule of law and parliamentary sovereignty itself into question. The problem is that many New Zealanders have conveniently forgotten that New Zealand's legal authority to pass laws is constituted by the Treaty, and believe instead that Parliament is magically sovereign. They forget that Parliament had first to become sovereign, and under the common law, that could only happen as the result of a treaty with those in possession of the originary aboriginal title. Sovereignty, we are told, was transferred.

The question is, can Parliament be a fair judge of its highly interested relationship to Treaty obligations? I'm not sure that it can. If it is true that the Treaty of Waitangi is a treaty between two sovereign peoples, then there must be an independent authority capable of judging Parliament's fulfillment of its responsibilities. It's clear that the Waitangi Tribunal is not that authority:
Our jurisdiction is recommendatory only, and power to govern resides with the Government. We have no say in how much or how little regard is paid to our views. As a quasi-judicial body standing outside the political process, we proceed in the expectation that governments in New Zealand want to be good governments, whose actions although carried by power are mitigated by fairness. Fairness is the value that underlies the norms of conduct with which good governments conform - legal norms, international human rights norms, and, in the New Zealand context, Treaty norms.
Of course we know that the new Supreme Court will not have the capacity strike down legislation that it considers illegal or unjust. Responding to questions from the U.K.'s Constitutional Affairs Committee on the new Supreme Court, Justice Sian Elias commented that
It is a court of general jurisdiction and not a constitutional court so that does not change... We can make declarations about compatibility with our equivalent of your Human Rights Act... indeed our legislation, as you are aware, affirms parliamentary sovereignty and the rule of law. Parliamentary sovereignty is a concept that has been developed by judges, by judicial determination, so this system is not going to give us the power to strike down legislation.
In text-books of politics, the doctrine of parliamentary sovereignty is seen as the appropriate form of power in what is called a unitary state, that is, a state in which there is only one source of legitimate authority. New Zealand is, it seems, just such a country. This country's parliament does not share power with a federation of provinces or states and, like Britain, has no written constitution to which all laws must conform.

Or does it? Surely, if the Treaty of Waitangi forms the basis of the New Zealand Crown's legal authority to govern, then the obligations set out in the Treaty must actually function as a kind of constitution, in so far as the failure to execute these obligations puts the sovereignty of the Crown into question. The problem is that as a quasi-consitutional document, it is limited to the obligations of the Crown to Maori. All the other questions of rights and limits to authority live in the amorphous miasma that passes for a constitution in this country. My feeling is that this is becoming less and less tenable. The advent of a new supreme court without the ability to actually check parliamentary power is becoming more problematic. And pressure to change this is mounting, partially as a result of the government's own actions. John Hopkins of Waikato University wrote a piece the other day in which he criticised government reaction to comments made by Justice Elias on the subject of judicial independence:
The reaction appears to stem from the Government's decision to portray creation of the Supreme Court Act as a measure devoid of significant constitutional implications. Such an approach allowed it to drive the bill through Parliament without lengthy debate. It also meant, however, that many difficult questions were left unanswered in the legislation. The Government has only itself to blame. The highest court in any democratic jurisdiction is not an ordinary court. It is the defender of the constitution and champion of the rule of law. Within these limits, its word is final. This is a role that often makes such courts unpopular with governments, and in many countries this function is handled through a separate institution.
There's a difficult conjunction going on here. On the one hand we have a new Supreme Court without real independence and without the kind of legal authority that most democracies take for granted. On the other hand, there is a deepening chasm between Maori peoples and the government that calls into question the legal arrangements of the New Zealand state. In a country that is wary of dramatic political change, Labour sought to modernise the judiciary by tinkering. Unfortunately, events have begun to reveal that tinkering was not the best solution.