Thursday, April 25, 2024

"Comity" versus the rule of law

In 1974, the US Supreme Court issued its decision in United States v. Nixon, finding that the President was not a King, but was subject to the law and was required to turn over the evidence of his wrongdoing to the courts. It was a landmark decision for the rule of law, both in the US and internationally, and helped cement the view in democratic countries that the government, whatever shape it may take, is subject to the law.

Today, in the case of Minister for Children v Waitangi Tribunal, the New Zealand High Court said "nah, fuck that":

The High Court has overturned a summons by the Waitangi Tribunal to Minister for Children Karen Chhour.

The minister was due to give evidence at the tribunal on Friday regarding the government's plans to repeal section 7AA of the Oranga Tamariki Act - but that will no longer go ahead.

So unlike the US, in New Zealand ministers are literally above the law. They don't have to front up to explain government policy to a standing constitutional commission of inquiry. We're a monarchy in practice as well as in name.

Reading the judgement, its a very odd decision. The court finds that the minister could provide relevant evidence which would assist the Tribunal's inquiries. It found that she should have provided it voluntarily, and that she was a dick not to. It found that the Tribunal has a statutory power to summons witnesses, which applies to ministers, so they could make her provide it. But not in this case, because of "comity" - that is, deference between the three branches of government.

Which probably sounds great in theory. The different bits of our government should be respectful of and not interfere in each other's roles? Sure. But its a bit of a problem when the literal job of the body the executive is demanding deference from is to perpetually inquire into them. And its clear how, both in general and in this case, demands for "comity" serve to frustrate that job, undermining the purpose of comity in the first place.

Its also weird because in Aotearoa's political system, the executive is the most powerful branch, and so the least deserving of any deference. And fundamentally, I just don't see comity towards to ministers as having any value at all. Comity from ministers is important - they shouldn't be telling the courts what to do, or frustrating their work by refusing to provide evidence (for example), and they should be accountable in Parliament for their and the government's actions. Similarly, I see the value in comity between Parliament and the courts, because of privilege and independence. But deference of either towards ministers? Fuck that shit. Because demands for "deference" from the executive basically boil down to inherited claims that the king is above the law, and the other two branches resolved that pretty decisively in 1649.

As for the specific case: apparently there's good grounds for an appeal (here's hoping). Or maybe the minister will just stop being a dick, and provide the evidence she was asked to. Alternatively, if she wants to keep being a racist dick (this whole thing being apparently due to hostility to the idea of having to comply with te Tiriti), and keep arguing that the decision to repeal section 7AA was determined by the coalition agreement, maybe the Waitangi Tribunal could take that argument seriously, and summons the people the government claims are actually responsible for that decision: the coalition negotiators. Not being ministers (in their coalition role, at least), there's no duty of "comity", and I'm sure they could explain their reasoning to the Tribunal. They're a commission of inquiry, after all. So maybe they should... inquire?