Editorial: Law-makers versus the bench

Successful societies depend on both democratic government and the rule of law. Democracy can ensure that power is used in ways that satisfy the majority of people, the rule of law aims to ensure that individuals can deal with each other on the basis of equal rights and consistent principles of justice. Normally the elected government and the arbiters of justice carry out their distinct functions with a minimum of conflict. But not lately, as a Herald series this week has begun to explain.

Tension has developed over the past two years with leading members of the judiciary challenging the long assumption of countries in the English tradition that Parliament holds ultimate power. Judges also wield a certain power when they interpret and apply the law Parliament writes and build their own body of principles and precedents. They can also review the legality of Government actions when asked.

Chief Justice Sian Elias clearly believes the power of review could go further, to challenge an act of Parliament. And a former Chief Justice, Sir Robin Cooke, the country's most eminent recent jurist, offers a hypothetical example of how Parliament's "myth of sovereignty" could be undone by the courts. "If an act of Parliament purported to disestablish the judiciary, replacing judges with security of tenure with a hierarchy of administrative tribunals holding office at ministerial pleasure," he said, "it is at best doubtful whether the courts would enforce it."

To elected politicians of all stripes there is no doubting Parliament's sovereignty. When the courts make a ruling that Parliament cannot bear - as happened most recently in the foreshore and seabed case - Parliament can override it, and Parliament has the last word. The public, if it listens to this constitutional dispute, would have no doubt where supremacy, or sovereignty, lies.

When it comes to the crunch, public opinion rules in this country and unless the legislature has acted in a way that grossly offends the electorate it is hard to imagine the new Supreme Court winning a constitutional showdown. But the Chief Justice says she is not interested in the notion of supremacy. She prefers to think of the roles and powers of Parliament and the Court as complementary. Even that has been too much for the likes of Deputy Prime Minister Michael Cullen who wants there to be no constitutional confusion: the elected body rules.

The judges cannot win this argument unless they get public opinion on their side, and they must first convince the public that the issue matters. They need to make it clear they are not so much challenging Parliament's sovereignty as asserting the judiciary's independence. And they have not been helped in that task by the Chief Justice's argument that the judiciary should be administratively independent. Judges are paid and given a supporting staff from taxation. Only Parliament can be accountable for that money.

Dr Cullen, now also Attorney General, has adopted the conventional view from his new office that judicial independence is somehow best served by protecting judges against political attacks on their decisions. Political criticism cannot harm judicial independence unless the courts kowtow to it, and they do not. The patronising protection of Attorneys General, however, can make the judiciary seem dependent on their minister.

The judiciary's power rests on the force of its decisions, not the theories they might venture in academic seminars. If their judgments are solidly researched, clearly reasoned, insightful, informative, fair and wise Parliament will fear to interfere. Their judiciary's independence will be secure and its constitutional status beyond doubt.