Monday, July 26, 2004

More on our supreme court hijinks

The puzzle of the mysterious comments has been solved.  While Margaret Wilson, Sian Elias, Thomas Gault and Kenneth Keith spoke to the House of Commons Constitutional Affairs Committee (the uncorrected transcript which I was checking), the judges also spoke to the House of Lords Committee on the Constitutional Reform Bill!  I hate bicameral legislatures!!  Thanks to Rodney Hide for coming up with the goods.

Since there were two hearings and that most of the scandalous comments occur at the hearing before the Lords' committee, I can only assume that:

  • The House of Commons Select Committee came first
  • The Supreme Court Judges took a rather long lunch, after which
  • They testified before the House of Lords Select Committee while over the limit
These comments are grounds for serious concern.  During Question 168, Sian said:

I think in a way the Executive has beaten up the anti-democratic, unelected angle, in other words, inflamed legislative suspicions of judicial over-aggrandisement.  I do not believe that is a real constitutional risk, but I think-

The Executive was responding to a certain Chief Justice who had the temerity to publicly declare that the sovereignity of parliament has not been authoritatively determined.  It was in response to that that:

Dr Cullen lamented the "widely held view that Parliament is an institution in the grip of majoritarian forces, and that the best hope for protection of human rights is to be found with appointed judges".
The role of judicial officers was to interpret the law and give effect to the will of Parliament.
"Whenever judicial officers stray towards making the law we run into trouble, not because their views are wrong ... but because they are unelected officials and have no democratic mandate.
"Any perception that judges are pursuing a political agenda is injurious to the public good."

The consitutional risk is real whether Sian likes it or not.

During Question 190, Sian also said

I wish the press and others would stop portraying this and it is a terrible shame that we are trapped into supremacist language and I do not like the name "Supreme Court" because I think it encourages us to look for who is trumping, and I do not think constitutions work like that; I think they are about dialogue and information flows.

If she doesn't like supremacist language then what does she think of her own title as Chief Justice? 

Tom Gault also makes a rather silly claim during Question 192:
I can recall a very interesting situation not long ago where one of them chose to criticise a judgment of the Court which was not particularly popular with the Government and to my surprise and joy the editors throughout the country rose up and wrote strongly in favour of the independence of the judiciary and the importance of it.

He is referring to the already quoted comments that Dr Cullen made.  Contrary to the impression that he gives, many editors and commentators supported the independence of the judiciary not because they were defending it from mean Dr Cullen's nasty attacks but because they felt the behaviour of some Judges in challenging the Executive was threatening to undermine it.

Lastly an observation. During Question 163, Sian admitted that "I have a terrible head for figures".  She and her husband have a lot in common then...