The Real Contempt

New Zealand’s Parliament considers legislation that would shield courts from criticism ― and make them instruments of censorship

I do not write about New Zealand very much, although I have been living here for a year and a half. Perhaps it is as well. If the Administration of Justice (Reform of Contempt of Court) Bill currently before the Justice Select Committee of New Zealand’s Parliament is enacted into law without substantial amendments, a blog post making “an allegation or accusation … against a Judge or a court [of New Zealand]” and deemed to create “a real [to] undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” could land me in prison for up to two years, or get me fined $50,000.

Now, much of the Contempt Bill, developed by the New Zealand Law Commission as part of an effort to clarify and update the law of contempt of court, seems to be a worthwhile project. But the provisions relating to criticism of the judiciary are dangerous. They are overbroad, infringe the presumption of innocence and freedom of conscience as well as freedom of expression, and rely on a dangerous amount of discretion in their enforcement.  Even if they are not applied to the fullest extent of which they are capable ― and, as I will explain below, I think they are meant not to be ― these provisions will have a chilling effect on lawyers and laypersons alike who might want to comment on the courts, whether in the media, on blogs, or in scholarship. They ought be amended or indeed abandoned altogether.

In a recent post, for instance, I argued that the Supreme Court of Canada had a “pro-regulatory bias”; previously, I criticized Chief Justice McLachlin for “tak[ing] up a partisan slogan” ― Pierre Trudeau’s “just society” ― “and try[ing] to make it into a constitutional ideal”, and mused about the corrupting effects of power on chief justices generally. If I criticize New Zealand’s courts and judges in similar ways, I think it would be fair to say that I would be making “accusations or allegations” that could, at least if read more widely than this blog normally is, “undermine public confidence in the … integrity or impartiality” of their targets. And while I know that not everyone is a fan of my sometimes strongly-worded opinions, I wouldn’t be the only one to fall foul of the Contempt Bill. The cover article of the New Zealand Law Society’s magazine this month is called “Bullying from the bench“, and its very first sentence is: “Bullying judges are identified and discussed whenever lawyers get together”. The same Law Society, meanwhile, is investigating a lawyer, Catriona MacLennan, for calling a judge unfit for the bench after he let off a man accused of domestic violence on the basis that “many people … would have done exactly” the same. Perhaps if the Contempt Bill is passed the Law Society will have a chance to rethink its position as it joins Ms MacLennan among those charged with undermining public confidence in the integrity of the judiciary.

These examples make clear, I hope, that the criminalisation of “accusations or allegations” that “could undermine public confidence in the independence, integrity, or impartiality of the judiciary or a court” can capture a vast range of perfectly legitimate, indeed absolutely necessary, criticism. While the Contempt Bill (and the Law Commission’s report) seem to suggest that only “untrue” statements are being targeted, this word appears only in the headings of Subpart 6 of Part 2 and of Clause 24 of the Bill  ― not in the text of subclause 24(1) which defines the offense. Rather, the truth (or material truth) of an “allegation or accusation” is, by subclause 24(3), made a defence to a charge under subclause 24(1) ― if the accused can prove the truth of the “allegation or accusation” “on the balance of probabilities”.

This is nowhere near enough to circumscribe the scope of the offence. For one thing, many “accusations or allegations” against the judiciary (such as my claims about pro-regulatory bias, or arguably Ms MacLennan’s views about the unfitness of the nothing-wrong-with-domestic-violence judge) are matters of conjecture or opinion: they are inherently incapable of being proven true. For another, ostensibly factual statements that could in theory be true or false can be made for rhetorical effect, and fail to be “materially true” even though they make a legitimate and easily discernable point (such as the claim about lawyers always talking about bullying judges). Besides, the requirement that an accused prove the truth of a statement when only “untrue” ones are thought to be worthy of being criminalized sits uneasily, to say the least, with the presumption of innocence (protected by paragraph 25(c) of the New Zealand Bill of Rights Act 1990). To be sure, in Canada, a similar truth-as-a-defence provision was upheld as a justified limitation on the right to be presumed innocent in R v Keegstra, [1990] 3 SCR 697. But what is justified in the context of a very narrow proscription of hate speech might not be in the context of a much broader ban on criticizing a branch of government and its officials.

Moreover, it seems to me that asking judges to rule that “allegations or accusations” calling into question the impartiality or integrity of colleagues, let alone hierarchical superiors, are true is putting both them and the accused forced to make that case in an exceedingly difficult position. (Of course, any suggestion that judges might be reluctant to impugn the impartiality or integrity of fellow-judges into question is itself an “accusation” that could “undermine public confidence” in their impartiality and integrity ―  and one that is inherently incapable of being proven true.) In Canadian law, there is a principle of fundamental justice according to which any defence to a criminal charge “should not be illusory or so difficult to attain as to be practically illusory”: R v Morgentaler, [1988] 1 SCR 30 at 70 (per Dickson CJ);  R v St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 SCR 187) at [77]. While the New Zealand Bill of Rights Act does not require such principles to be followed before a person can be imprisoned, this still seems like a sensible moral guideline. The Contempt Bill does not comply with it.

The Contempt Bill’s provisions on criticism of the judiciary have other serious problems, besides the breadth of the offense it creates and the narrowness if not the illusory character of the defence of truth. Instead of, or in addition to, prosecuting a person for having made “allegations or accusations” against the judiciary, the Solicitor-General is empowered, under subclause 25(2) to “request” a retraction or an apology ― including a retraction pending the determination of that person’s guilt. The Solicitor General can also apply, under subclause 26(1), for an order of the High Court requiring, among other things, a retraction or an apology. Such an order is to be granted if the Court is “satisfied that there is an arguable case that” prohibited “allegations or accusations” have been made. Such orders must, under subclause 26(5) be consistent “with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990”, but non-compliance can, under clause 27, lead to stiff fines ― and “knowing or reckless” non-compliance to imprisonment too.

This, in my view, is inconsistent with the freedoms of expression and conscience, as well taking further liberties with the presumption of innocence. The Solicitor-General’s “requests”, backed by the implicit threat of hauling a non-compliant person before the High Court, will at least produce a chilling effect, if not be outright coercive. “Requests” to retract statements that have not yet been judged to be illegal ― with perhaps, wink wink, nudge nudge, the possibility to avoid prosecution as an inducement ― are especially disturbing. But the prospect of court-ordered apologies is even worse. Persons who are being coerced, by threat of imprisonment, into apologizing are being made to say something they do not believe in and, in an affront to freedom of conscience, also to express a moral judgment about their own culpability which they presumably do not share. A liberal state cannot extort such moral judgments from its citizens. As Justice Beetz, speaking for a majority of the Supreme Court of Canada in “additional reasons” in National Bank of Canada v Retail Clerks’ International Union, [1984] 1 SCR 269, said of a labour arbitrator’s order that a bank sign a letter endorsing the objectives of labour legislation, “[t]his type of penalty is totalitarian and as such alien to the tradition of free nations like Canada,” ― or New Zealand ― “even for the repression of the most serious crimes”. (296) Whatever the Contempt Bill might say about respecting the Bill of Rights Act, it is not possible to make such orders with violating the freedom of expression and the freedom of conscience of their targets.

The fact that these orders could be made, not upon a finding of guilt beyond a reasonable doubt or even on a balance of probabilities, but merely if there is an “arguable case” that a person has published “an allegation or accusation” that creates “a real risk” of “public confidence in the independence, integrity, or impartiality of the judiciary or a court” being “undermined” only compounds the iniquity of the Contempt Bill. To be sure, the orders are, ostensibly at least, a form of civil remedy ― though note Justice Beetz’s description of the arbitrator’s letter as a “penalty”. Thus the New Zealand Bill of Rights Act’s protection for the presumption of innocence, which only extends to persons “charged with an offence”, does not apply. Yet the low burden of proof required for a retraction or an apology order means that rights can be interfered with on the basis of a weak showing by the government, even one that is less likely than not to be justified, and so go against the principle of respect for individual rights if not the right to be presumed innocent itself.

Finally, it is worth highlighting the fact that the Contempt Bill quite clearly contemplates that the enforcement of its proscription on “allegations or accusations” against the judiciary will be highly discretionary. Prosecutions are required to be “in the public interest”, (subclause 25(4)) and “may consider” the existence of any complaints about a judge and “any explanation provided by the Judge” (subclause 25(5)). This, I think, is a tacit admission of drafting failure. The Contempt Bill’s authors implicitly recognize that it is overbroad, and hope that the good judgment of prosecutors can be relied on to avoid fining or imprisoning people for legitimate criticism of the judiciary. This is not good enough. The chilling effect of the criminalisation of such criticism will be felt even if there are no abusive prosecutions, as those who write about the courts constantly watch their words and wonder whether they are crossing the line that exists in the prosecutors’ minds. And there is something perverse for a bill that sets out to clarify the law and give citizens fair notice of their responsibilities vis-à-vis the justice system to rely on prosecutorial discretion to avoid these responsibilities becoming a crushing burden.

The Contempt Bill’s provisions restricting criticism of the judiciary must not be enacted in their current form. Whether any such provisions should be enacted at all is something I still need to think through. If enacted, however, they ought at a bare minimum to make room for what Lord Denning MR described, in R v Com’r of Police of the Metropolis, Ex parte Blackburn (No 2), [1968] 2 QB 150 (CA) as “the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest”, including by saying that a court is “mistaken, and [its] decisions erroneous, whether they are subject to appeal or not” (155) ― and including, too, if the commenter him- or herself is in error. New Zealand’s Parliament should take the advice of Lord Denning when he said that his court would not invoke its powers to find a person in contempt “as a means to uphold [its] own dignity. That must rest on surer foundations.” (155) That this power would now  come from statute rather than the common law does not change matters. New Zealand’s courts are independent, and therefore should, just like the English Court of Appeal, “not fear criticism, nor …  resent it”. (155) If anything, it seems to me that the courts’ dignity is more endangered by legislation that would make them into instruments of censorship than by criticism.

The NZBORA and the Noble Dream

Introducing my new paper on the whether the idea of dialogue about rights between courts and Parliament makes sense in New Zealand

Last year, I posted here about a decision of the New Zealand Court of Appeal, Attorney-General v Taylor, [2017] NZCA 215, which held that when a court found a statutory provision inconsistent with the New Zealand Bill of Rights Act 1990, it had the power to make a formal declaration to this effect, in some circumstances anyway. As I noted in that post, the Court of Appeal invoked the idea of constitutional dialogue between courts and Parliament to support its view that courts had an inherent power to make such formal declarations, despite the absence of an explicit authorization in the Bill of Rights Act. I noted, too, that I was skeptical about the usefulness of that idea in New Zealand.

I developed these initial thoughts into an article which the New Zealand Universities Law Review published over the holidays under the title “Constitutional Dialogue: The New Zealand Bill of Rights Act and the Noble Dream“. Here is the abstract:

In its recent decision affirming the courts’ power to issue “declarations of inconsistency” between legislation and the New Zealand Bill of Rights Act 1990, the Court of Appeal embraces the notion of a “constitutional dialogue” between the judiciary and Parliament regarding issues of rights. It suggests that, since both branches of government are engaged in a collaborative process of giving effect to the Bill of Rights Act’s provisions, Parliament can be expected to take the courts’ views on such matters into serious consideration.

This article questions the suitability of the notion of constitutional dialogue to New Zealand’s constitutional arrangements. The idea of dialogue, largely developed as a means to alleviate concerns about the “counter-majoritarian difficulty” that arises in jurisdictions with strong-form judicial review of legislation, cannot be usefully adopted to a system of very weak judicial review, such as the one put in place by the Bill of Rights Act. Dialogue may seem to be an attractive way of addressing what might be termed the “majoritarian malaise” caused by a sovereign Parliament’s sometimes cavalier approach to the rights of individuals and minorities. Yet meaningful dialogue cannot take place if one of the parties is entitled to ignore the other, which has no resources to impress its views upon an unwilling potential interlocutor.

As others have argued in the context of constitutional systems with strong-form judicial review, there is no need to attribute the positive connotations of the dialogue metaphor to a set of institutional interactions that is, in truth, very far from being a conversation, because the participants may neither understand nor be interested in understanding each other. Indeed, there is a danger that the embrace of the notion of dialogue will serve to obscure the reality that, the Bill of Rights Act notwithstanding, New Zealand’s constitutional framework remains one of essentially untrammelled parliamentary sovereignty, which can be, and sometimes is, abused.

Of course, a meditation on New Zealand’s peculiar form of weak judicial review may be of limited interest to most Canadian readers. If it is interest to you, however, I’d be happy to hear what you make of it. And at least my call for transparency about constitutional power dynamics is, I think, relevant beyond the shores on which I now find myself.

Not That Kind of Voting

What New Zealand’s Electoral Commission’s attempt to boost turnout gets wrong about voting, and what we can learn from it

There will be a general election in New Zealand this Saturday. As is customary in such circumstances, there is some hand-wringing going on about what turnout is going to be like ― it was almost 78% in 2014, which in Canada, never mind the United States, would be considered sky-high, but regarded as worryingly low in New Zealand. And the Electoral Commission is doing its part in trying to encourage people to vote, among other things by publishing this sleek video that recently showed up in my Facebook feed (and by using other ads based on the same theme):

The trouble, as I see it ― though I will not claim to speak for Kiwi abstainers ― is that, if you think about it for a second, this video’s true message about voting is precisely the opposite of the one it is intended to convey.

We “vote every day”, we are told: for snoozing or getting up; for dirty or clean underwear (that one, I suppose, is of particular relevance to politics); for whether to be a nice person or a not-so-nice one; and for a whole lot of other things. And it follows, apparently, that we should also vote in the election (or those entitled to do so should, anyway ― I am not, since I’m not yet a permanent resident). In other words, according to Elections New Zealand, voting for a party and a candidate to represent you in Parliament is just like making one of those everyday decisions that you are used to making, well, every day. Except, of course, that it isn’t, and in a number of ways.

Perhaps most obviously, if done with a modicum of seriousness, voting in a election is a good deal harder than deciding whether to hit the snooze button or to get up already. (I’ll call that sort of decision-making “voting”, as opposed to voting.) Voting requires one to acquire substantial amounts of information about the candidates and their platforms, about the world and the ways in which the candidates’ proposals fit or do not fit with what we know about it, and ideally also about how the electoral process itself works. (Another video from the Electoral Commission cheerfully showcases the voters’ utter ignorance about the latter point, as if equanimity were the appropriate response to it.) Relatively few people are well informed voters, and even some, perhaps quite a few, of those who are not at least realize that they have work to do in order to become at least somewhat knowledgeable ― though many will never do that work, for reasons to which I’ll presently return. And quite apart from informational difficulties, voting requires one to ponder incommensurable values (do vote, say, for the candidate with the better tax policy or the one more likely to respect the constitution?). By contrast, one doesn’t need to work very hard to “vote”. “Voters” typically have all the information they need from personal experience, and the values at stake are also less abstract and easier to sort out.

The second crucial difference between voting and “voting” is that the “voters” are the ones who live with the consequences of their decisions, whereas voters are not. If you keep on dirty underwear, you are the one who stinks. If you haven’t had occasion to learn that in the past, there’s a reasonable chance that you will learn now. By contrast, if you vote to keep a lousy politician in office, most (and perhaps  all) of the cost of that vote (however small a fraction of the total cost is attributable to an individual vote) is absorbed by others. You may even profit from your bad decision, either because the politician rewards his or her supporters at the expense of  the community as a whole, or simply because voting in that way gave you a satisfaction that is greater than the costs that vote imposes on you ―  though again the costs to the community as a whole are substantial. Moreover, it is often difficult to trace bad outcomes to bad votes, or good outcomes to good ones. The difficulty is sometimes subjective ― a voter who doesn’t understand a modicum of economics will not be able to tell that relative impoverishment resulted from the protectionist policies he or she supported. But it is often objective. Policy is complex, and it is difficult even for knowledgeable people to link causes with effects with much certainty. As a result, voters do not learn from the consequences of their decisions in the way “voters” do.

In short, voting and “voting” are rather different activities, and just because we do a lot of the latter, and do it reasonably well, it doesn’t follow that we should do the former, or that we can do it with any competence. We “vote” well enough because each “vote” is (usually) a relatively straightforward decision and, even when it is not, we have strong incentives to learn enough, and to be objective enough, to decide well, because we are the one living with the consequences of the decision. These reasons don’t apply to voting, which involves complex decisions and trade-offs, which are difficult enough to manage even for unbiased and well-informed decision-makers ― but we lack the incentives to be either of these two things because we do not in a meaningful way bear the consequences of our votes.

Of course, I have no idea whether the Electoral Commission will be successful at persuading people to go to the polls despite the faulty premises underlying its ad campaign. But if it does, this will, I am afraid, be an additional reason to distrust voters, who let themselves be fooled by what is really an well put-together effort at misdirection. Rather, the message we should take from the ad is the one that Ilya Somin delivers in his book Democracy and Political Ignorance: Why Smaller Government Is Smarter: the more decisions we can make by “voting” rather than voting, the better off we will be. Whoever wins this week’s election should really think about that, rather than fret about turnout rates. Don’t worry though: I won’t be holding my breath.

Dreaming of Dialogue

Can New Zealand courts declare statutes to be inconsistent with the Bill of Rights Act? Does this matter?

Canadians have long been used to the idea that, as the Supreme Court put it in Re Manitoba Language Rights, [1985] 1 SCR 721, “[t]he judiciary is the institution charged with the duty of ensuring that the government complies with the Constitution.” (745) In New Zealand, things are very different of course, because the constitution is not entrenched. Parliamentary sovereignty prevails, and the courts’ role is limited accordingly. Although there is a statutory bill of rights, the New Zealand Bill of Rights Act 1990, it specifically provides that courts cannot invalidate or otherwise refuse to apply legislation that is inconsistent with it, and contains no remedial provision analogous to section 24 of the Canadian Charter of Rights and Freedoms.

So it is, or at perhaps was, an open question what, if anything, a court might be able to do when it concludes that a statute is inconsistent with the Bill of Rights Act. Might it go so far as to issue a declaration to that effect, or is it limited to only stating this opinion in the course of its reasons? In Attorney-General v Taylor [2017] NZCA 215, the New Zealand Court of Appeal says that, sometimes at least, a formal declaration can be made, and upholds the very first such declaration issued by a New Zealand court, confirming that the disenfranchisement of all convicted prisoners (and not only of those serving sentences longer than the three-year Parliamentary term) is inconsistent with the Bill of Rights Act’s guarantee of the right to vote. (The Attorney-General was not contesting the substantive point, it is worth noting, but only disputing that the declaration could and should have been made.)

* * *

The first question for the Court was whether authority to make a “declaration of inconsistency” existed at all and, if so, what its source was. The answer, the Court holds, is that superior courts have such an authority as part of their jurisdiction to answer questions of law, and that the Bill of Rights Act supported it. The Court rejects the Attorney-General’s submission that express statutory authorization is required to permit the making of declarations of inconsistency. Just as Parliament’s legislative authority does not derive from positive law but from political fact, so does the judicial authority of the courts. Neither branch owes its authority to the other; rather, “a distribution of the state’s sovereign powers among the branches of government emerged from the political settlement concluded in the decades following the Glorious Revolution of 1688”. [50] Ultimately, “[i]nconsistency between statutes is a question of interpretation, and hence of law, and it lies within the province of the courts.” [62]

The Court notes that the Bill of Rights Act itself contemplates the possibility of a judicial assessment of the consistency of other legislation with its provisions, whether its results are stated in the court’s reasons (which the Attorney-General accepted was permissible) or in a formal declaration. Moreover, New Zealand has undertaken to provide domestic remedies for breaches of its obligations under the International Covenant on Civil and Political Rights, the implementation of which is one of the Bill of Rights Act’s stated purposes, so that it should be interpreted in accordance with this undertaking. Besides, in the Human Rights Act 1993, Parliament has already authorized the making of declarations of inconsistency when legislation breaches equality rights. Although the Bill of Rights Act contains no equivalent provision, this “evidences parliamentary acceptance that a court may make declarations about the inconsistency of legislation with rights protected by the Bill of Rights”. [107]

Second, the Court had to address an intervention by the Speaker of the House of Representatives, who argued that the whole case, or at least the way in which it had proceeded, was an infringement of Parliamentary privilege. In particular, the Speaker was concerned by the reliance, at first instance, on a report prepared by the Attorney-General to alert the House of Representatives of the incompatibility (in the Attorney-General’s opinion) between the blanket disenfranchisement of prisoners and the protection of the right to vote in the Bill of Rights Act. Indeed he sought sought to prevent the use of any “speeches in the House, select committee reports or submissions made to select committees” [122] to ascertain the consistency of legislation with the Bill of Rights Act, arguing that this would be tantamount to calling Parliamentary proceedings into question contrary to article 9 of the Bill of Rights 1688 and the Parliamentary Privilege Act 2014. The Court rejected these arguments, holding that “a court does not impeach parliamentary proceedings merely by describing parliamentary processes or making a finding about the same subject matter,” [129] so long as it does “not endorse or criticise Parliament’s treatment of the issues”. [130] It is permissible, too, to refer to the Attorney-General’s report, although it is important for the courts to come to their own, independent conclusions.

Third, the Court considered the conditions in which declarations of inconsistency should or should not be granted. Such declarations, thought they do not affect anyone’s rights, are part of a “dialogue” (it might have been more accurate to say “conversation”) involving the the different branches of government, which

is not unique to constitutional disputes. It describes the routine work of government, in which Parliament legislates and the executive administers and courts interpret, leading in due course to legislative reform to better meet the community’s evolving needs. [150]

The only difference is that a declaration of inconsistency is a “more pointed” [150] than usual expression of a court’s opinion, which carries with it

the reasonable expectation that other branches of government, respecting the judicial function, will respond by reappraising the legislation and making any changes that are thought appropriate. [151]

Such “pointed” expressions of judicial opinion should not be lightly; a statement in the court’s reasons for judgment is sometimes, and even “ordinarily” [162] preferable. But it is sometimes necessary to go further. However, the courts are to apply fairly strict criteria for standing (at least when compared with the Canadian “open bar” approach), and to ensure that there exists a real adversarial dispute and that they have the relevant evidence available to them before pronouncing on the rights-consistency of legislation.

Fourth and last, the Court asks itself whether a declaration should have been granted in this case. It concludes that because “[t]he undiscriminating limitation … on so central a right demanded justification [and] [n]one was forthcoming” a declaration of inconsistency “was the appropriate way both to convey the Court’s firm opinion that the legislation needs reconsidering and to vindicate the right”. [185]

* * *

To Canadian readers this all might seem like pretty tame stuff. And indeed there is no mistaking the notes of caution in the Court’s discussion, above all in its statement that “indications” rather than formal declarations of inconsistency should “ordinarily” suffice. What “ordinarily” will mean in practice remains, of course, to be seen, but at least for now the Court seems to think the step of granting a formal remedy ― even one that could produce no more than a purely symbolic effect ― is a serious, even an exceptional one.

Yet I think it would be a mistake to make light of the Court’s decision and, perhaps more importantly, of its reasoning. Although its conclusions are cautious, it still reflects a confident view of the judiciary’s constitutional position as a branch of government that is, in its own sphere, not Parliament’s subordinate, but its equal. It is worth noting that the primary ground on which the Court rests the authority to make declarations of inconsistency is not an implication from the text or nature of the Bill of Rights Act (as it had done in Simpson v Attorney-General [1994] 3 NZLR 667 (CA), a.k.a. Baigent’s Case, where it held that damages were available for breaches of the Act by the executive). Rather, the authority to make declarations of inconsistency is said to come from the judiciary’s own inherent powers, which the Court goes out of its way to say are not the product of any legislation but of the constitutional order of things (my phrase, not the Court’s). Similarly, the Court resists the Speaker’s attempt to restrict judicial deliberations about Bill of Rights Act issues, even as it cautions that judges must be seen to interfere with the deliberations of Parliament.

Indeed, this case can be seen as a clash between two competing constitutional visions. One, advanced both by the Attorney-General and the Speaker, sets Parliament, protected by its sovereignty and privilege, above the other branches of government, whose first concern must be to avoid disrespecting or challenging it. The other, which the Court adopts, treats the branches as (almost) co-equal: “each is sovereign within its sphere of authority in the sense that it may act without the permission or authority of the others”.[51] To be sure, Parliament is first among equals because it can make law, and thereby oust judicial power (though New Zealand judges, as their British counterparts, have on occasion mused about the limits of that authority) or, in other cases, royal prerogative. But at least until it does so equality, not subordination, is the rule. It is a respectful equality, but respect goes both ways: not only must the courts exercise restraint and show comity on appropriate occasions, but Parliament too ought to engage in constitutional dialogue, and go so far as to reconsider its enactments, when called upon to do so by the courts.

Yet I am quite skeptical about the potential for constitutional dialogue between the judiciary and Parliament, on which the Taylor Court rests such hopes. We know that in Canada the “dialogue” has turned out to be quite one-sided, with the Supreme Court telling Parliament what it had, and what it could not, do. As the majority put in Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 SCR 519, another prisoner disenfranchisement case,

the fact that the challenged denial of the right to vote followed judicial rejection of an even more comprehensive denial, does not mean that the Court should defer to Parliament as part of a “dialogue”. Parliament must ensure that whatever law it passes, at whatever stage of the process, conforms to the Constitution. The healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of “if at first you don’t succeed, try, try again.” [17]

The power dynamics in New Zealand are, of course, the opposite of those in Canada. It is Parliament, not the judiciary, that gets to have the last word in a constitutional conversation. But I do not expect it to be any more open to persuasion than the Supreme Court of Canada. I would love to be proven wrong on this, but I’d be quite surprised if ― assuming there is no change of government at the forthcoming election ― New Zealand’s Parliament chose to “reconsider and vindicate the right” to vote as the Bill of Rights Act, which it was happy to ignore on this issue, requires it to do.

* * *

Subject to an intervention by the Supreme Court, the courts of New Zealand do, then, have the ability to formally declare legislation to be inconsistent with the New Zealand Bill of Rights Act, despite the Act not authorizing them to do so. This authority rests on a conception of the constitution in which the branches of government are almost, if not quite, equal, rather than Parliament lording it over the courts (and the executive). Yet there is reason for skepticism about the vision of respectful dialogue between Parliament and the courts that this relative equality is supposed to foster. Someone gets to have the last word, and it seems likely enough that, in New Zealand as in Canada, it will be the only that will count.

NOTE: See also the comments by Andrew Geddis, on Pundit, and Edward Willis, on his Great Government blog.

Do You Really Have to Go?

Lessons for Canada and New Zealand on resignations of MPs

A recent article by Audrey Young in the New Zealand Herald observes that the number of resignations of Members of New Zealand’s Parliament during the course of the terms for which they were elected has increased since the country moved from the first-past-the-post electoral system (which Canada now has) to the mixed-member proportional (MMP) system. Ms. Young also writes about proposals to reduce the number of resignations. There may be something for both Canada and New Zealand to learn from each other here.

The overall numbers are stark: “In the 20 years before MMP began in 1996, there were 14 vacancies ― nine caused by resignations of MPs and six by deaths while in office. [NOTE: It occurs to me that the numbers don’t add up; but the correct figure is relatively unimportant here.] In the 20 years since … there have been 48 vacancies”, 45 of them caused by resignations. New Zealand’s Parliament was enlarged when MMP was introduced, but the increase of its membership from just below 100 to 120 does not account for the growth in the number of resignations. Of course, correlation does not equal causation; but there are in fact good reasons to think that there is causation here.

Most significantly, Ms. Young notes that of the 45 MPs who resigned, 30 were “list MPs”. Yet there are at one time only 50 (or, with the occasional addition of overhang seats, sometimes 51 or 52) such MPs in New Zealand’s Parliament, compared to 70 elected in single-member districts. The smaller pool of list MPs is providing two thirds of all resignations. And it’s not hard to see why that might be the case: when a list MP resigns, he or she is simply replaced “by the next available candidate on the party list.” There is little cost for the party, for getting a soon-to-retire or an out-of-favour MP to retire, and replacing him or her with a more eager or better liked one.

Yet David McGee, a former Clerk of the New Zealand Parliament, writes in the Herald that all these resignations are “deleterious to the institution of Parliament and to the sense of obligation that members should feel to it”. While does not elaborate this very much, he adds that “[m]embers in the final year of a Parliament can and should be expected to contribute to its work for the full term that they have signed up to”. And so Mr. McGee suggests a solution to this problem. “In the case of list members … any vacancy occasioned by resignation should not be filled.” This will disincentivize the parties, which prompt most these resignations, from ever doing so.

For Canadian advocates of electoral reform generally, and especially of MMP (which I take it is the most popular option among reformers), there is a warning here. Electoral reform is likely to bring in more resignations ― and more MPs brought in from lower down party lists, without the publicity or scrutiny of elections. An unintended consequence, no doubt, but arguably still an unpleasant one. And solution proposed by Mr. McGee is not very appealing either, it seems to me; it is too dependent, for its attractiveness, on complete success. If it fails to prevent resignations, then it will result in departures from the principle of proportionality of representation ― and in a finely balanced Parliament might even cause a change in the balance of power. And to achieve the absolute success it requires, Mr. McGee’s proposal incentivizes parties in a way that is arguably no less perverse than that of the current system for being its opposite: a party will do everything to keep a list member, even one involved in scandal or found to simply be incompetent, from resigning, and diminishing its power. As Edward Willis points out,

the ability for politicians to resign is usually understood to be an important accountability mechanism. Politicians do not always cover themselves in glory, and sometimes the people want (metaphorical) blood. Falling on one’s sword in a public manner demonstrates the accountability of the political system to the people at the level of the individual politician, and for that reason alone I would be hesitant to put anything in the way that would prevent or inhibit political resignations.

The same concerns arise with respect to Mr. McGee’s proposal for dealing with resignations of MPs elected by constituencies, Mr. McGee argues that

as a condition of being declared elected, electorate members should be required to enter into a bond to serve through the full term of the parliament. The amount of the bond would not cover the full cost of a byelection … but it should be sufficiently high to provide a financial disincentive to resignation for the member and for the party backing the member.

The only exception he would make to the application of these penalties would be for those MPs who resign “on health grounds proved to the satisfaction of the Speaker or the Electoral Commission”.

The idea is similar to one that has already been implemented in Québec, where the Act Respecting the Conditions of Employment and the Pension Plan of the Members of the National Assembly provides, since 2015, that the Assembly members who do not complete the term for which they were elected forfeit the “transition allowance” to which they would otherwise be entitled. Pursuant to section 12 of the Act, a member who resigns can only get his or her allowance upon proving, to the satisfaction of the Assembly’s Ethics Commissioner, that the “resignation is due to a serious family matter or to a major health issue affecting him or a member of his immediate family.”

When this idea was first floated in 2013 by the then-Minister responsible for Democratic Institutions and Active Citizenship, Bernard Drainville ― who would later resign from the National Assembly in June 2016, right in the middle of a legislative term ― I criticized it here. I noted that the supposed “moral contract” between the voters and their representatives, which bound the latter to serve out their terms, appeared to be a matter of wishful thinking, if the experience of the leader of Mr. Drainville’s own party was anything to go by. Pauline Marois had resigned from the National Assembly in 2006, saying that “her heart [was] no longer in it”, and yet came back and was elected again in 2007, later becoming Premier. More importantly, though, I wrote that “requiring members of the assembly to serve out their terms would have perverse effects”, notably in that

it would incentivize a member mired in ethical problems, or even one charged with an offense, to cling to his or her seat rather than resigning and giving it up to another, better able to represent his or her constituents. And more broadly, citizens would not be well served by a representatives whose heart … was no longer in it, and who only show up at the Assembly in order to eventually collect their allowance. Mr. Drainville’s proposal would likely create such zombies.

Needless to say, not many people pay heed to my rants, and the proposal had sufficient bipartisan support that it was eventually enacted, not by Mr. Drainville’s Parti québécois, but by the Liberals who replaced them in government in the meantime.

If New Zealaders get serious about taking action against MP resignations, they would do well to consider Québec’s experience. It is still very brief, but perhaps already instructive. My worries about zombie-MNAs waiting to collect their allowance might have been exaggerated, though of course it is impossible to tell. What is clear, however, is that a financial penalty will not deter at least some legislators from resigning mid-term. Mr. Drainville himself did it, to take up a radio talk-show host job, after Pierre-Karl Péladeau resigned as Parti québécois leader and quit politics. Mr. Péladeau’s own resignation might have fallen within the scope of the “serious family matter” exemption, but his case also shows that a penalty that would be a serious matter for most people would have been of no concern at all to someone as wealthy as he is.

Indeed, this may be unsurprising. In New Zealand itself already denies any sort of golden parachute to members of Parliament who leave before the end of their term. Section 11 of the Members of Parliament (Remuneration and Services) Act 2013 only provides an “additional salary” to those who are “member[s] of Parliament immediately before the dissolution of a Parliament” ― and yet it has not stopped resignations. Admittedly, the amount to which members who serve out their term are entitled is only three months of salary, as opposed to up to a year in Québec. Still, that many choose to forego it ― even leaving just months before they would become eligible for it ― suggests that when a legislator becomes sick and tired of legislating, he or she may walk away from easy money just to get away from it. (Take that, all you cynics who think that politicians are only in it for greed or lust for power!)

Our institutions have flaws; sometimes, very visible, even obvious flaws. Members of Parliament resign without finishing the job for which they were elected; governments come to office without the support of a majority of the people. It is tempting to look for an easy fix to these flaws. But these fixes may be less effective than they seem, and may create problems of their own if implemented. Moving to an electoral system featuring party lists may raise the number of parliamentary resignations; requiring prospective MPs to pay a bond to ensure against their resignation may fail to provide that insurance, yet deter the less well off from standing for office. Tinkering with the rules may feel satisfactory, but it is perhaps better to remember that no system is perfect.

Where Is the Grass Greener?

In a recent article in Constitutional Forum, Peter Russell argues that Canada needs to imitate New Zealand by creating a Cabinet Manual that would, notably, contain an authoritative although not legally binding statement of the principal constitutional conventions, especially those that regulate the formation of governments. While this would, in prof. Russell’s view, have a number of benefits ― “[a] Cabinet Manual”, he writes, “can be a quietly evolving instrument for reforming the ‘unwritten’ part of our constitution” and increase political accountability ―  “the biggest benefit a Cabinet Manual would yield for our society is to increase the knowledge of citizens about how
they are governed” (98).

Meanwhile, in New Zealand itself, a former Prime Minister and inveterate constitutional reformer, Sir Geoffrey Palmer, is campaigning, together with one of the country’s leading lawyers, Andrew Butler, for the enactment of a codified constitution that would eliminate conventions altogether. A major reason they cite for their effort is New Zealanders’ ignorance of their constitution ― which the Cabinet Manual lauded by prof. Russell has apparently done nothing at all to dispel. (Note, however, that their proposed constitution would require the publication of updated versions of the ― presumably slimmed down ― Cabinet Manual every six years (s 25).) A codified constitution, by contrast, will do wonders to rectify this sorry state of affairs

Prof. Russell does not really explain how the existence of a Cabinet Manual will bring about the “increase [in] the knowledge of citizens about how they are governed” that he anticipates. He provides no evidence of its having done so in New Zealand, although he does confidently assert that “[m]aking the Cabinet Manual available on the internet was a giant step in increasing the constitutional literacy of New Zealanders” ― mostly, it seems, thanks to the wonders of hypertext. If Sir Geoffrey and Dr. Butler (as well as many of my colleagues here in New Zealand) are to be believed, prof. Russell is simply wrong.

For their part, Sir Geoffrey and Dr. Butler do not really explain how the codification of constitutional rules will change anything to the citizens’ ignorance of and lack of interest in these rules. They hope that a codified constitution that dispenses with conventions “will educate people and public decision-makers on their rights and responsibilities … and provide a better framework for learning about civics” (25). But they provide neither evidence that this can happen, nor examples that it has. Canada and Australia, with their partly codified and partly conventional constitutions, would seem to offer perfect natural experiments that can test their assertions: if Canadians and Australians are more knowledgeable or better educated about federalism, which is codified in their respective constitutions, than they are about responsible government, which is not, then Sir Geoffrey and Dr. Butler are right. Otherwise ― and although I have no empirical evidence, it seems to me that it is indeed otherwise in Canada ― they too are simply wrong.

In fact, the idea that an authoritative text ― whether legally binding or merely informative ― telling people “how they are governed” is going to achieve much of anything to educate citizens on this admittedly crucial issue is naïve. Consider the situation in the United States, with its revered Constitution (and, let us note, a very short constitution in contrast to the 40-page one that Sir Geoffrey and Dr. Butler are proposing, never mind the length of a Cabinet Manual). As Ilya Somin reminds us, “[p]ublic ignorance” there

also extends to the basic structure of government. A 2006 poll found that only 42 percent can even name the three branches of the federal government: the executive, the legislative, and the judicial. There is also much ignorance and confusion about the crucial question of which government officials are responsible for which programs and issues. (164-65)

Neither prof. Russell nor Sir Geoffrey and Dr. Butler explain how their proposals will ensure that their respective countries will avoid the fate of the United States. Prof. Somin, by contrast, does have an explanation for the phenomenon that he observes, which is that

[f]or most people, political ignorance is actually rational behavior. If your only incentive to follow politics is to be a better voter, that turns out not to be much of an incentive at all, because there is so little chance that your vote will actually make a difference to the outcome of an election. … For most people, it is rational to devote little time to learning about politics, and instead to focus on other activities that are more interesting or more useful. (166)

No Cabinet Manual, and codified constitution, can change that. But unless they recognize this fact, well-meaning reformers are bound to think, with no particular justification, that whatever system they have must be responsible for the public’s ignorance of the constitutional basics, and that whatever system some other country has must be the solution to the problems they see in theirs. So Canadians will propose imitating New Zealand, while New Zealanders will want to imitate, and indeed go further than, Canada. Yet while the grass may always be greener on the other side of the Pacific Ocean, the putrid flowers of political ignorance bloom on both.

Why Do the Write Thing?

Sir Geoffrey Palmer and Andrew Butler, both of them former legal academics and current barristers, Sir Geoffrey having also served as Attorney-General and Prime Minister in between, are about to publish a book advocating that New Zealand enact a “written” constitution. They have also set up a Twitter account and a website to both promote the book and seek out comments, which they say in the book’s description “will be reflected in a second edition to be published in 2017.” The Twitter account has published the following infographic listing reasons for adopting a written constitution:

These reasons apply not just in New Zealand but pretty much everywhere ― if they are indeed good reasons, that is. So the experience of countries that have adopted “written” constitutions ― including Canada and the United States ― should be relevant to assessing whether they are. If these reasons support the adoption of a “written” constitution, their effects should be observable in Canada (to the extent that our constitution is “written”), the U.S., and elsewhere. The countries with written constitutions should be doing better than those without (and notably New Zealand) on all these counts. With respect, it seems to be me that for the most part they are not. In this post I explain why.

But just before I do that, a brief comment is in order on the phrase “written constitution,” which as you may have noticed I only use in scare quotes. The reason for this is that “unwritten” constitutions tend in fact to be written down somewhere, so that they are not really unwritten at all. This is especially true of New Zealand’s “unwritten” constitution, which is written down both in legal sources such as the Constitution Act 1986, the Letters Patent Constituting the Office of Governor-General of New Zealand, or judicial decisions, and in extra-legal ones, such as the Cabinet Manual 2008, which re-states most if not all of the constitutional conventions and other important rules governing the executive branch, in authoritative although not legally binding format. When people speak of a “written” constitution, they tend to speak of a codified or an entrenched constitution, and usually, but not always, both. This is how Sir Geoffrey and Mr. Butler use the term: on their website, they say that “[p]eople have rights and they should be provided in a constitution that is supreme law and binds the Parliament.”

* * *

The above “reasons to adopt a written constitution” can be grouped in a few categories. Some of them have to do with the democratic process; others with the limitation of state power; others still with transparency and accountability. Let me consider these in turn. (I will not say anything about the enhancement of national identity, partly because I am not qualified to speak to the subject in New Zealand, and partly because I am, as a general matter, profoundly skeptical of any action, and especially any legal change, that pursues this objective.)

I do not think that anything about the strength of a polity’s democracy (to which I also take the “easier to participate” and, in part, “government is more accountable” claims to refer) turns on whether that polity’s constitution is codified, entrenched, both, or neither. Polities with unentrenched and uncodified constitutions, including of course New Zealand but also, to a lesser extent, Canadian provinces (whose constitutions are partly entrenched) can be well-functioning democracies. They can, and already do, have free and fair elections which produce regular changes of government. Is democracy stronger ― whatever that means ― in Canada or in the United States than it is in New Zealand? Quite a few Canadian election reformers passionately believe the opposite, because Canada has a first-past-the-post electoral system (as does the U.S., mostly), while New Zealand has moved to a version of proportional representation. Whether or not we agree with them ― I do not, as I’ve explained here ― it is to say the least not obvious where the democratic gains from moving to a codified or entrenched constitution are.

Codification and entrenchment will have some effect on the limitation of state power (including to protect human rights and the Rule of Law, and to prevent abuses). A codified constitution might be clearer and thus easier to understand than an uncodified one. An entrenched constitution is ― ostensibly anyway ― less malleable than one that can amended by ordinary legislation, and can in principle better protect individual and minority rights. But the gains on these various counts are actually rather smaller than they might at first appear.

So far as clarity is concerned, I’m not sure that the current sources of New Zealand’s constitution are especially unclear, as these things go ― they do not strike me as any more obscure than Canadian or American ones. One should also keep in mind Chief Justice Marshall’s warning, in McCulloch v Maryland, that

[a] constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. (200)

As for stability, an entrenched constitution is only as stable as the judiciary lets it be. As Grégoire Weber, among others (including yours truly), has pointed out, the Supreme Court of Canada has lately been re-writing the Canadian constitution a couple of times a year at least. The Supreme Court of the United States is regularly accused of similar mischief. Admittedly, if there could be guarantees of the courts strictly adhering to some version of originalist constitutional interpretation, this danger would be minimized. But there can be no such guarantees anywhere, and in New Zealand in particular, originalism is not the preferred interpretive approach to the New Zealand Bill of Rights Act 1990, so there seems to be little reason to think that judges could be persuaded to approach an entrenched constitution in this spirit.

The same goes, of course, for protecting rights. The protections provided by an entrenched constitution can be no stronger than the judiciary’s inclination to enforce them. Admittedly, the attitude of Canadian judges changed when the partly entrenched Canadian Bill of Rights was supplemented by the mostly entrenched Canadian Charter of Rights and Freedoms, I’m not sure if the same sort of change would occur in New Zealand ― which, after all, already largely respects individual rights. Would, for example, the adoption of an entrenched constitution, change anything to what seems to be a consensus that it is perfectly fine to disenfranchise prisoners serving long terms? I doubt it.

Turning to transparency and accountability, it seems to me that the great problem here is not the form of the constitution, but political ignorance. Ignorance of basic facts about the constitution is prevalent in the United States, where merely a third of the respondents to a recent poll could name the three branches of government ― despite a constitution whose very structure begins with these three branches. Pointing out that Donald Trump has never read the U.S. Constitution is a great rhetorical move (and I say this unironically), but while the charge is doubtless accurate so far as it goes, many of Mr. Trump’s fellow citizens (and not only among his voters) are every bit as guilty of it as he is. Ironically, Sir Geoffrey and Mr. Butler might just succeed in improving the public’s understanding of New Zealand’s constitution simply by encouraging conversations about it, without any changes being made. I wouldn’t be too optimistic though. As Ilya Somin and others explain, people have no incentive to become informed about the workings of  government, and the existence of an entrenched constitution changes nothing to this reality.

That said, New Zealand already has a number of accountability mechanisms, some of which seem to be functioning better than those in place in Canada. Though I’m far from an expert in the field, New Zealand’s access-to-information legislation might be stronger than its Canadian (federal) counterpart, for instance. And New Zealand’s government is much better than that of Canada at proactively making a lot of information (such as the advice it receives on the compliance of its laws with the Bill of Rights Act available to the public. (I might write about this in the future ―not too distant, I hope.) Perhaps entrenching these accountability mechanisms would give them greater symbolic weight. But it would also freeze them in place, which may not be a good thing ― not to mention that it would yield a constitution suffering from the “prolixity of a legal code.”

* * *

In a polity like New Zealand ― which already has a well-functioning, if in some people’s view imperfect democratic system, and which largely, if again imperfectly, respects human rights ― the gains from constitutional entrenchment are likely to be marginal in the short or even medium term. There will be some costs, too, though I have not discussed them here. Of course, the case of federal states may well be different ― it is usually said that a federal state needs an entrenched constitution to protect the division of powers (though note that Switzerland’s constitution is effectively not entrenched as against the Federal Assembly, its parliament, and that many on the American left would like the division of powers under the U.S. Constitution to be unenforceable against Congress). But this reason for constitutional entrenchment does not apply to New Zealand.

Other than the speculative prospect of a long-term crumbling of the polity’s commitment to human rights and the Rule of Law that would somehow not affect the judiciary, is there a good reason to entrench New Zealand’s constitution? Well, maybe, but it’s not one that Sir Geoffrey and Mr. Butler name. Entrenching the constitution makes sense if one’s goal is to shift power from Parliament and the executive to the courts. The courts’ incentives are different than those of the “political branches.” They might be more solicitous of minorities at the margins, but as or more importantly, they may also be less solicitous of special interests, because these special interests can do little for them. (Tough this is far from certain ― some special interests may find keen listeners on the bench, if for example they can provide the plaudits and recognition that judges, not unlike politicians, may come to crave.) It may be that in a unitary, Westminster-type system, democracy becomes too potent a force, and judicial review of legislation is the only countermeasure available, so it must be used faute de mieux, even in the knowledge that judicial power too will be abused and can degrade the constitution and the Rule of Law as much as the legislative and the executive.

These are serious reasons in my view. But whether they are conclusive or not, one thing is certain. Shifting power from elected officials to judges does not strengthen democracy ― it weakens it, deliberately. It does not make law clear. And it certainly does not make those who wield power more accountable. It might be worth doing regardless. But not for the reasons that Sir Geoffrey and Mr. Butler give us.