‘…If you maltreat a penguin in the London Zoo, you do not escape prosecution because you are the Arch-Bishop of Canterbury.’
The rule of law broadly requires; that all are equal before the law , that the government is subject to the law and must exercise its power according to the law, finally that ‘there exist fundamental individual liberties and minimum standards of justice, to which the law must conform’ . The rule of law is problematic to define but put simply it is not ‘the rule of men’ and is evident in societies with functioning judiciaries and a clear separation of powers such as New Zealand. It is one of several intrinsic attributes of our constitutional makeup and overall the Judiciary aid in ‘ensure[ing] that the rule of law is maintained’ .
The judiciary is both part of and upholds the rule of law, it is however the lesser of the three branches of government yet nevertheless a force to be reckoned with in checking that the rule of law is upheld. The judiciary can be viewed as analogous to the Rule of law. It is both consummate, in checking and balancing the two other branches of government against arbitrarily abusing the citizenry. Disparate, in that the judiciary is not democratically elected and its inherent common law powers can create ‘judge made law’8888. The Lands Case , and the offending section 9 of the SOE Act highlights the legislature inviting the judiciary to create the ‘principles’ of the Treaty of Waitangi as the statute left the definition up to the judiciary to define, therefore not in conflict with the Rule of Law and the supremacy of parliament.
However in Baigent’s Case Cooke P created a remedy for breaches of the Bill of Rights even though no such clause existed. In the same vain Taylor v NZ Poultry Board and Cooke’s oft quoted ruling highlights the ever encroaching powers of the judiciary in their ability to liberally (golden rule) interoperate statutes to the extent that;
“…it can be said that the Courts are beginning to find it necessary to approach if not actually enter upon areas which touch upon policy…” .
If the judiciary are intentionally straying into matters of governmental policy then they as unelected, impartial adjudicators should only do so when cases arise that call for such action, potentially when governmental action threatens the rule of law – a right afforded to them as a constitutional check on governmental power. While the judiciary can be viewed as in a constant skirmish with the Legislature and the Executive much of the judiciary’s power to interoperate statutes liberally comes from powers delegated to it by parliament .
Administrative Law (dealing with regulations) ‘is essentially judge made law’ and its outcomes are neither predictable nor its case law concise. Therefore while public law offers substantial protections against ‘arbitrary power’ of government it is not easily accessible to all. The courts have no power to strike down legislation (parliamentary law...