Comity Be Damned! The State’s Legislative Arm Is Flexing Its Constitutional Muscles.

Packing A Punch: The election of the present government, including in its ranks politicians dedicated to reasserting the rights of the legislature in shaping and determining the future of Māori and Pakeha in New Zealand, should have alerted the judiciary – including its anomalous appendage, the Waitangi Tribunal – that its days of calling the shots on race relations in general, and the Treaty in particular, were coming to an end.

THE CONSTITUTIONAL PRINCIPLE of “comity” acknowledges the susceptibility of what should be complimentary state functions to dangerous entanglement. It enjoins the three branches of government; executive, legislative and judicial; to demonstrate a mutual respect for each other’s functions. Without “comity”, not only is the smooth functioning of the three branches of government put at risk, but also the political legitimacy of the state itself.

This is a big enough ask in a republic with a written constitution, but it imposes an enormous set of expectations in countries governed by the Westminster System. When the executive and legislative arms are conjoined, as they are under the Westminster System, the judicial arm is acutely exposed to being bullied into conformity by its “brothers”. It is a bold and/or reckless judiciary that negates the virtues of comity by challenging the elected centres of state power head-on.

The limits of judicial power have been on vivid display in the palace of Westminster ever since the Supreme Court of the United Kingdom declared “unlawful” the legislative mechanisms devised by the Conservative Government of Rishi Sunak to “Stop the Boats!”. Incensed by this breakdown in comity, Sunak and his party passed a law negating the judgement of the Supreme Court justices. Regardless of the actual conditions on the ground, the House of Commons has declared the Central African state of Rwanda to be a “safe place” for asylum-seekers.

In the course of this bitter constitutional arm-wrestle with their own judges, Conservative MPs have voiced equally bitter condemnations of the European Convention on Human Rights (the charter drafted in the late-1940s by the UK, among others, in the aftermath of Nazism’s defeat) and its judicial extension, the European Court of Human Rights (ECtHR) whose jurisdiction still extends across the United Kingdom.

From the perspective of Tory MPs, British judges overturning the will of the elected representatives of the British people is bad, but manageable. On the other hand, being told what to do by a bunch of European judges is intolerable. Small wonder, then, that there is a growing clamour from the British Right for the UK to repudiate the Convention and withdraw altogether from the ECtHR. Predictably, human-rights activists in the UK are outraged and dismayed by such suggestions.

Historically, the principle of comity enjoyed only a brief lifespan in the United States where, early on in the history of the American Republic its Supreme Court seized – and has exercised ever since – the right to strike down as “unconstitutional” the decisions of the lower courts as well as the executive and the legislative branches. Unelected, and enjoying lifelong tenure, the nine justices of the US Supreme Court have wreaked havoc across two centuries of American history. “Dred Scott”, its most infamous judgement, declared that African-Americans could never enjoy the same rights as White Americans, and made the American Civil War inevitable.

Bringing the vexed issues of minority rights before the judicial arm has, however, always attracted those who cannot persuade either political leaders, or legislative assemblies, to respond to their appeals. The strategy is particularly attractive if the judiciary gives cause for activists to suspect that it might look sympathetically upon their respective causes.

So it was that, from the 1950s to the 1970s, the US Supreme Court proved jurisprudentially obliging where federal and state legislatures proved politically obdurate. Legally outmanoeuvred by liberal lawyers and judges, the American Right drew the obvious lesson from historic victories like “Roe v. Wade” – make sure that conservatives, not liberals, dominate the Supreme Court. Implementing that strategy took the Federalist Society the best part of 50 years, but it got there in the end.

Naturally, with the judiciary in the hands of their enemies, left-wing Americans reached out instinctively for the legislative branch – most especially those provisions of state constitutions allowing for legislation by plebiscite. Statewide referenda on issues enjoying clear majority support, like abortion, were able to overcome even the most outrageous of Republican gerrymanders.

And now the principle of comity looks set to vex the New Zealand political scene. The Waitangi Tribunal (which entertains pretensions to being a court) has summonsed a cabinet minister, Karen Chhour, to appear before it and answer its questions.

This unprecedented move has elicited strong, and arguably quite threatening, responses from senior parliamentarians outraged by what they clearly consider to be an egregious breach of the principle of comity. In turn, their remarks have prompted claims that the cabinet members responsible, David Seymour and Shane Jones, are constitutionally out of line and should be reprimanded by the Prime Minister.

The passions now in evidence have not arisen out of nowhere. For at least three decades the New Zealand courts have been encroaching on territory that rightly belongs to the legislature. That the legislature deliberately set the judiciary up to act as its proxy on the Treaty of Waitangi does not excuse the latter’s reckless acceptance of its poisoned chalice. The fraught historical relationship between Māori and Pakeha is simply not susceptible to judicial remedy, being adjudicable only by the electorate – responding through the ballot box to policy alternatives thrashed out by New Zealand’s political parties.

Unfortunately, the lawyers, judges, and university professors, who had taken responsibility for dealing with the volatile matters vouchsafed to them by frightened politicians were not prepared to let the voting public adjudicate the principles of the Treaty of Waitangi, or any of the other pressing issues driving race relations in New Zealand. As in the United States, the judges seized the initiative. The expectation was clear: on this, the judicial branch would be leading its executive and legislative brothers.

It was a decision only those not subject to electoral sanction could possibly have made. As the shape of a “Tiriti-based” constitution, in whose creation the overwhelming majority of New Zealanders had been denied involvement, began to emerge, revealing a schema in which the democratic principle was being treated as, at best, an irritant, and, at worst, something to be eliminated altogether in the name of “indigenisation” and “decolonisation”, the people, and at least some of their political representatives, began to realise just how far back along the road the judiciary had lost sight of the principle of comity.

The election of the present government, including in its ranks politicians dedicated to reasserting the rights of the legislature in shaping and determining the future of Māori and Pakeha in New Zealand, should have alerted the judiciary – including its anomalous appendage, the Waitangi Tribunal – that its days of calling the shots on race relations in general, and the Treaty in particular, were coming to an end.

In the spirit of comity, the judiciary and the Waitangi Tribunal should have stepped back, relieved, perhaps, that the executive and legislative branches of the New Zealand state were, at long last, stepping up to their constitutional responsibilities. What they chose to do instead, however, was summons Karen Chhour.

As Crown Law’s counsel have been making admirably clear in the High Court today, that was a mistake.

This essay was originally posted on The Democracy Project website on Monday, 22 April 2024.