Constitutional Entrenchment of the Supreme Court

One of the landmark changes achieved by Helen Clark's Labour Government was the abolition of the right of appeal to the Privy Council. While the merits of doing so, and the replacement of the Privy Council with a local Supreme Court, could be debated either way, the real problem with it in a context of fundamental rights and of a limitation of powers of Parliament is simple. These rights and limitations can be overridden by Parliament if, by ordinary statute, Parliament can erect a new higher court, which the Government can then pack with judges unsympathetic to the right or limitation to be overridden.

The obvious solution to this is to entrench the supremacy and make-up of whatever court is to be supreme. A government might even choose to reinstate appeals to the Privy Council! I think this unwise, though, because the composition of the Privy Council is not subject to the people of New Zealand, either directly or through a representative body. A better step would be to entrench the current Supreme Court.

The size of the Supreme Court should be fixed in the Constitution. One of the problems that has arisen in the United States is the possibility of expanding their Supreme Court, with its expansive constitutional role, by ordinary legislation, and then appointing new Justices. This is widely referred to as, "packing the court."

On the other hand, life (or to retirement age) appointments present a problem. This problem is not well recognised in New Zealand because of Parliamentary sovereignty, which limits the powers of the Court, but will become more of an issue if other constitutional changes are carried through. The essence of the problem is that a Government can, by appointing a relatively young judge, shape the views of the bench for many years, perhaps even decades.

This problem can be avoided by having the longest-serving Judge of the Supreme Court retire every three years (or some other interval, but three years means one per ordinary Parliamentary term). Of course, from time to time additional vacancies will arise as Judges die in office, or resign or retire for unrelated reasons.

It should also not be up to the Government alone to appoint a new Judge to the Supreme Court. For lower courts, whose legal rulings are subject to appeal, this is probably OK. But Supreme Court appointments should be made with a broad consensus. It is tempting to suggest a two-thirds vote in Parliament, though that raises the risk that an adverse Parliamentary opposition will block an appointment out of spite, or, more nobly, because of a fundamental philosophical disagreement. A majority of MPs is probably sufficient and deals with this problem.

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