Cullen Wrong On Parliamentary Sovereignty

Michael Cullen is wrong when he implies that the doctrine of parliamentary sovereignty means Parliament can do absolutely anything it likes, the Treaty Tribes Coalition said today.

"Michael Cullen's comments must surely send a chill up the spine of every New Zealander. If Michael Cullen believes he can take away the rights of Màori to their day in court, he must think he can do it to any New Zealander," Coalition Chairman Harry Mikaere said.

The Treaty Tribes Coalition acknowledges that parliamentary sovereignty is part of New Zealand's unwritten constitution and must therefore be respected.

However, the Coalition says that equally part of New Zealand's unwritten constitution is that parliamentary sovereignty must be exercised responsibly, and with proper regard for the common law, the rights of citizens and the role of the courts.

The Coalition is highlighting key judicial and academic comments that question Michael Cullen's assertion on parliamentary sovereignty.

"The Government must let the courts do their job. That is the only fair way to determine any legal Màori interests in the foreshore and seabed. Màori will abide by the judgements of the courts."

Mr Mikaere also criticised National Party Deputy Leader and Màori Affairs Spokesman Gerry Brownlee for describing the Waitangi Tribunal as "politically-appointed enthusiasts" and "not jurists".

"That shows very little respect for a tribunal which Don Brash told the Treaty Tribes Coalition two weeks ago a National Government would fund properly. If Gerry Brownlee does not believe tribunal members are jurists, he should be prepared to see this case go to the Supreme Court where there can be no doubt that the judges are indeed jurists, and the proper people to sort the issue out," Mr Mikaere said.

The academic and judicial comments highlighted by the Treaty Tribes Coalition are:

Rt Hon. GEOFFREY PALMER: "There are . judicial statements which challenge the view that Parliament's law-making powers are unlimited: according to these dicta, some common law rights, such as the right not to be subjected to torture and the right of access to the Courts, may lie so deep that not even Parliament can override them. In the light of this ongoing debate, what limits there may be on the capacity of Parliament to make laws cannot be authoritatively stated; however, it is no longer safe to assume that there are no limits." The Laws of New Zealand: Parliament Reissue (2003) par 2

Lord COOKE of Thorndon: "We have reservations as to the extent to which in New Zealand even an Act of Parliament can take away the right of citizens to resort to the ordinary courts of law for the determination of their rights." NZ Drivers' Association v NZ Road Carriers (1982)

Professor PHILIP A JOSEPH (restating A V Dicey's Doctrine of the Rule of Law): "(3) Although common law freedoms must yield to statute, these freedoms embody essential values warranting preservation even against the legislative supremacy of Parliament." Constitutional & Administrative Law 2nd Edition (2001)

NIGEL HAMPTON QC: "If a Government can change the law . part way through a case when it sees a chance of that case being lost, then the rule of law, the role of the courts, the right of citizens to be tried in accordance with the law seem to take on a somewhat hollow or shadowy existence." LawTalk (1988)

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