What do constitutional courts do?

There is a case I spend too much time thinking about. It’s called Lange v Atkinson, and it’s about a former Prime Minister trying to sue a journalist who wrote nasty things about him. The Prime Minister said he had been defamed, but the court ruled that special extra defences exist if it is a politician claiming defamation. The case developed the idea of political speech in New Zealand, and so has important public law implications.

But it’s not the rule in that case that I spend time thinking about. It’s the way the rule was arrived at. The Court of Appeal – at the time our highest domestic court – took the view that getting the law right on this one required them to seriously consider each of the competing interests involved. The right to make political comment (a component of the right to free speech) needed to be balanced against the right of politicians to be protected from defamatory comments that might harm their reputation. The court carefully examined the nature and importance of the competing interests in context, surveyed the position in other jurisdictions, and weighed the policy arguments carefully in the balance. In the end, its solution was to incrementally extend a existing common law protection – something lawyers call ‘qualified privilege’ – to speech critical about politicians. If I had to summarise the approach of the Court of Appeal to this important issue, I would describe it as cautious and considered, and going no further than it needed to.

By itself, that approach might be unremarkable. But it stands in contrast to the approach taken to the same issue in very same case in the High Court. There, the Court found that the interest in freedom of expression was manifestly paramount. The rest of the judgment flowed directly from that finding. It was not a question of balance or competing interests, but of articulating a fundamental principle to drive the law in the proper direction (with potentially much wider precedential consequences). This was a methodological approach available to the Court of Appeal as well, but it elected to go a different way.

It’s also notable that often Courts overseas take this second approach to constitutional issues rather than the first. Perhaps the most famous example is the United States Supreme Court case New York Times v Sullivan, and it’s a useful example because it deals with a very similar free speech type issue. The rhetoric in that case is forthright and compelling. It puts a stake in the constitutional ground defending free speech as a cardinal constitutional value, treats it as a fundamental premise that simply cannot be disturbed, and the result essentially flows from the need to realise that fundamental principle as articulated by the Court. None of your balancing of competing interests and taking things in the round, thank you very much – there’s a correct answer and we are going to drive straight to it in no uncertain terms.

The question I find myself pondering is why our de factohighest court in this case took a measured approach rather than one based on forthright principle. I can’t say for sure, but I think it has something to do with the judicial culture that has developed around our unwritten constitutional structure. It is very difficult to point to fundamental principles in the same way that the US Supreme Court can, because they don’t sit out there is an accessible document for the court to make reference to. Where the courts do rely on such principles, they are required to assert them on their own merits, and so questions about whether those principles are actually valid follow naturally. A more conservative approach, even if it reaches the same result, is more defensible given the unique way our constitution works.

I bring all this up now because now I have another case to spend too much time thinking about. The Supreme Court’s recent decision in the prisoner voting rights case (Attorney-General v Taylor) seems to me to raise precisely the same sort of issues. The Court of Appeal in that case (no longer our highest domestic court) took the fundamental principle approach. On the question of whether the courts can intervene when legislation breaches fundamental rights, the Court of Appeal said it was all about the nature of the relationship between Parliament and the Courts. It articulated a fundamental principle that the Courts have an essential role in vindicating rights, and issued a declaration of inconsistency on that basis.

However, in the Supreme Court, again we saw a more measured judgement. The relationship between Parliament and the courts was essentially ignored, and the judges focused instead on the relevant statutory provisions. It was almost as if they were trying to make their decision sound as orthodox and uninteresting as possible by avoiding talk of fundamental principle. The Supreme Court still found that the New Zealand courts have the power to issue declarations of inconsistency, but for a different reason. That reason is because the New Zealand Bill of Rights Act 1990 empowers them to do so. Not much controversy about that.

I have seen comment from some of my academic colleagues that the Supreme Court judgment is rather boring, especially when compared to the Court of Appeal judgment. I don’t think that’s true. It is really interesting, I think, because the methodological approach taken by our highest court says something important about what a constitutional court is supposed to do in New Zealand. It develops the law incrementally, slowly, cautiously, because it can’t always easily point to a source of authority outside of itself to justify the grand constitutional conclusions we might otherwise expect. Whether that’s a good thing or a bad thing in our constitutional context needs to be debated, but for now let’s recognise that the approach appears to be deliberate. That in itself says something really interesting about our constitutional arrangements, and in my view that’s worth thinking about.

#publiclaw #SupremeCourt #unwrittenconstitution

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