Category Archives: Comparative Constitutional Law

Notes from a Foreign Field: The High Court of Kenya Strikes Down Criminal Defamation

In an interesting judgment handed down yesterday, the High Court of Kenya held that criminal defamation unjustifiably restricted the right to freedom of speech and expression, and consequently, was unconstitutional and void. The judgment is part of a growing worldwide trend (with a few noticeable exceptions) to decriminalise defamation, whether judicially or legislatively.

The Constitutional Provisions

Article 33(1) of the Kenyan Constitution guarantees the right to freedom of speech and expression. Article 33(2) provides that this right shall not extend to propaganda for war, incitement to violence, hate speech, or advocacy of hatred. Article 33(3) provides that every person must “respect the rights and reputation of others.”

In addition, Article 24 of the Constitution contains a general limitation clause that states:

“A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including— (a) the nature of the right or fundamental freedom; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others; (e) and the relation between the limitation and its purpose and whether there are less restrictive means to achieve the purpose.” 

It is important to note that Article 24 lays down a test of proportionality, which is broadly similar to the test laid down by the Indian Supreme Court in State of Madras vs V.G. Row, where the Supreme Court had held that under Article 19 of the Indian Constitution, the relevant test required consideration of:

“The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.”

As we can see, there is an overlap between four of the five prongs of the two tests.

The Court’s Analysis

The Petitioners argued that “criminal libel is not a reasonable or justifiable restriction on freedom of expression and added that it is a “disproportionate instrument for protecting the reputations, rights and freedoms of others” and that the remedy in tort is sufficient and less restrictive means of achieving the purpose.” (pg. 3) To buttress this submission, they cited comparative law, including the judgment of the African Court on Human and Peoples’ Rights, the judgment of the High Court of Zimbabwe, and the 2008 Report of the U.N. Special Rapporteur on Freedom of Opinion.

The Court agreed. First, it held that criminal defamation was not saved by Article 24, because the general limitations clause was clearly intended to protect social interests, while criminal defamation was intended to protect an individual interest (the interest of the person defamed). To substantiate this argument, the Court applied the doctrine of noscitur a sociis (a word is known by the company it keeps), on the authority – interestingly – of the Indian Supreme Court. Consequently:

“It is to be borne in mind that defamation of an individual by another individual is a civil wrong or tort, pure and simple for which the common law remedy is an action for damages. It has to be kept in mind that fundamental rights are conferred in the public interest and defamation of any person by another person is unconnected with the fundamental right conferred in the public interest and, therefore, Section 194 out to be construed outside the scope of Article 24 of the Constitution which in my view aims at largely protecting public interest.”

And, with respect to Section 33:

“Section 194, which stipulates defamation of a private person by another individual, has no nexus with the fundamental rights conferred under article 33 of the Constitution, for Article 33 is meant to include the public interest and not that of an individual and, therefore, the said constitutional provision cannot be the source of criminal defamation. I base this argument on two grounds:- (i) the common thread that runs through the various grounds engrafted under Article 33 (2) (a)-(d) are relatable to the protection of the interest of the State and the public in general and the word “defamation” has to be understood in the said context, and (ii) the principle of noscitur a sociis, when applied, “defamation” remotely cannot assume the character of public interest or interest of the crime inasmuch a crime remotely has nothing to do with the same.”

(There is a parallel worth thinking about here, because the Indian Supreme Court has often held that the purpose of Article 19(2) is to protect “social interests“.)

However, given that Section 24 spoke about the “rights of others“, and Section 33 spoke about “reputation”, was that not a basis for the constitutionality of criminal defamation?  The Court responded that the question was whether criminalising defamation was a proportionate method of protecting the rights of others. It held that it was not. To start with, the Court observed:

“Human rights enjoy a prima facie, presumptive inviolability, and will often ‘trump’ other public goods.” (p. 8)

Within this framework, the Court held that the question of proportionality would have to be answered in two phases: “firstly, what are the consequences of criminalizing defamation and, secondly, is there an appropriate and satisfactory alternative remedy to deal with the mischief of defamation.” (p. 11)

On the first issue, the Court focused on the specific aspects of the criminal process: “The practical consequences that would ordinarily flow from a complaint of criminal defamation are as follows; the accused person would be investigated and face the danger of arrest. This would arise even where the alleged defamation is not serious and where the accused has an available defence to the charge. Thereafter, if the charge is prosecuted, he will be subjected to the rigors and ordeal of a criminal trial. Even if the accused is eventually acquitted, he may well have undergone the traumatizing gamut of arrest, detention, remand and trial. Moreover, assuming that the accused has employed the services of a lawyer, he will also have incurred a sizeable bill of costs which will normally not be recoverable.” (p. 11)

While, admittedly, this problems would afflict any person accused of any criminal offence, the case of free speech was crucially different because of the chilling effect. According to the Court:

“The overhanging effect of the offence of criminal defamation is to stifle and silence the free flow of information in the public domain. This, in turn, may result in the citizenry remaining uninformed about matters of public significance and the unquestioned and unchecked continuation of unconscionable malpractices.” (p. 11)

Additionally:

“The chilling effect of criminalizing defamation is further exacerbated by the maximum punishment of two years imprisonment imposable for any contravention of section 194 of impugned section. This penalty, in my view, is clearly excessive and patently disproportionate for the purpose of suppressing objectionable or opprobrious statements.” (p. 11)

Furthermore, if proportionality was about ensuring that the least restrictive method was applied to serve a particular goal, then the very existence of an equivalent civil remedy made criminalising the offence disproportionate. The Court held:

“I am clear in my mind that there is an appropriate and satisfactory alternative civil remedy that is available to combat the mischief of defamation. Put differently, the offence of criminal defamation constitutes a disproportionate instrument for achieving the intended objective of protecting the reputations, rights and freedoms of other persons. Thus, it is absolutely unnecessary to criminalize defamatory statements. Consequently, I am satisfied that criminal defamation is not reasonably justifiable in a democratic society within the contemplation of article 24 of the Constitution. In my view, it is inconsistent with the freedom of expression guaranteed by 33 of that Constitution.” (p. 14)

Finding that this view was also in accord with international practice as well as the decisions of the African Court, the Kenyan High Court struck down criminal defamation.

Comparisons with India

It is interesting to note that all the arguments that proved decisive with the High Court of Kenya, were argued before the Supreme Court last year in Subramanian Swamy vs Union of India – and almost completely ignored. It was argued that defamation was primarily aimed at protecting individual reputation, and therefore inconsistent with the very purpose of criminal law (to provide public remedies). It was argued that criminalising defamation was a disproportionate response under Article 19(2), because of the nature of the criminal process. And it was also argued that the Court was required to be particularly solicitous to the question of balance as far as the freedom of speech was concerned, because of the reality of the chilling effect. However, instead of engaging with these issues, the Court decided to elevate reputation to the status of the right to life, invented a doctrine of “constitutional fraternity” out of thin air, and upheld criminal defamation in a rambling, 270-page long judgment, which was notable for its failure to address the precise arguments that – as pointed out above – the High Court of Kenya found convincing.

It is not only for its verdict, but also for its lack of reasoning, that Subramanian Swamy needs an urgent rethink. The Kenyan High Court’s terse and lucid 14-page judgment provides us with a good template of what such a rethinking might look like.

 

Advertisements

1 Comment

Filed under Comparative Constitutional Law, Constitutional Scholarship, Defamation, Free Speech, freedom of speech, Kenya, Uncategorized

Guest Post: The Curious Case of Salient Features: Exploring the Current Relevance of the Basic Structure Doctrine in Pakistan

(In this guest post, Aratrika Choudhuri, a student at the National University of Juridical Sciences, Kolkata, discusses the recent discussion of the Pakistani Supreme Court on the basic structure doctrine)

The Supreme Court of Pakistan (“SCP”), by an overwhelming majority of 13 out of 17 judges, recently held that it has intrinsic powers to review the constitutionality of a constitutional amendment passed by the Parliament. While the 902 page judgment has been hailed as an ostensibly favorable instance of the current trend of Asian nations (e.g. Bangladesh) to uphold the Basic Structure Doctrine (“BSD”), an in-depth analysis shows that the BSD was not adopted in Pakistan in an identical manner to India. In fact, a different doctrine was developed and upheld- the Salient Features Doctrine (“SFD”). Due to the considerable befuddlement surrounding this area, this essay analyses the SCP’s interpretation of SFD in the understanding of Pakistan’s unique politico-constitutional history, and critiques its understanding of the differences between BSD and SFD.

Put very briefly, the Basic Structure Doctrine, as enunciated in the landmark Indian case Kesavananda Bharati v. State of Kerala, implies that the Constitution of India has certain immutable basic features, which cannot be damaged or destroyed by constitutional amendments enacted by the Parliament, and that the Judiciary has power to strike down such amendments. While the Supreme Court of India has deliberately and steadfastly refused to provide an exhaustive list of “basic features”, it has variously held – inter alia – democracy, republicanism, secularism and judicial review to be part of the basic structure.

In the SCP’s decision, the petitions challenging the 18th Amendment (laying down a new procedure of judicial appointments) and 21st Amendment (setting up a series of military courts to try cases involving terrorism) to the Constitution were heard together as they involved a common constitutional question as to whether there are any limitations on the powers of the Parliament to amend the Constitution and whether the Courts possess jurisdiction to strike down a constitutional amendment. The SCP, by aforementioned majority, answered both questions in the affirmative, saying that Article 239(5) (“no amendment of the Constitution shall be called in question in any court on any ground whatsoever”) and Art. 239(6) (“for the removal of doubt, it is hereby declared that there is no limitation whatever on the power of Parliament to amend any of the provisions of the Constitution”) still left room for judicial review of constitutional amendments.

The majority verdict asserted that, from State v. Zia Ur Rahman to Nadeem Ahmed v. Federation of Pakistan, the SCP has consistently held that the BSD has been recognized only to the extent of identifying salient or fundamental features of the Constitution. On the other hand, Chief Justice Nasir-ul-Mulk’s opined that the foundations of arguments for BSD in Pakistan are shaky (p. 38)- (1) a stray remark in Mahmood Khan Achakzai v. Federation of Pakistan merely identifying three basic features- federalism, parliamentary form of Government, blended with Islamic provisions (contemporaneously interpreted by two other judges sitting on the same bench as not validating the basic structure theory); (2) a rhetorical unanswered question in Wukala Mahaz v. Federation of Pakistan (“If the Parliament by a Constitutional Amendment makes Pakistan as a secular State, though Pakistan is founded as an Islamic Ideological State, can it be argued that this Court will have no power to examine the vires of such an amendment?”); and (3) a restriction imposed by the SC on military dictator Pervez Musharraf, in Zafar Ali Shah v. Pervez Musharraf Chief Executive of Pakistan from altering the afore-mentioned basic features. Nowhere, however, has such a basic structure as commonly understood in India to be left deliberately vague and undefined, been recognized by the SCP.

The Chief Justice, along with Justice Rahman, argued that the difference in politico-judicial histories of India and Pakistan warrant the assertion that the BSD, as developed in a foreign jurisdiction like India, cannot be similarly applied “unthinkingly” to Pakistan (especially when there is ample dissent in Kesavananda itself), and that the debate with respect to the substantive vires of an amendment to the Constitution is a political question to be determined by appropriate political forums (e.g. parliamentary democracy), not by the judiciary (p. 77). Justice Nisar, concurring, made a passing remark that the earlier trend of passing draconian amendments (e.g., the 5th amendment seeking to “tame” the judiciary, as evinced in Article 280 of the Constitution of Pakistan) has generally ceased and therefore, unlike their Indian counterparts, recent constitutional amendments in Pakistan generally have a unique beneficial intent and effect (p. 535-536). This argument appears to attribute the very “heroism” to elected representatives, which he denounced in case of the Judiciary, and seems optimistic in its assumption that the Parliament would not relapse into such tyranny (1).

Justice Khawaja argued that, on an organic reading of the Constitution, the Parliament’s power to amend the Constitution is constrained by limitations which are both political and subject to judicial review, that the expression “amendment” (ordinarily implying correction and improvement) does not extend to abrogation or destruction and, therefore, SCP has the power to strike down a Constitutional amendment which transgresses these limits (p. 90). He affirmed that the Preamble, on account of its clarity in issuing nine People’s directives, is unlike the hopelessly vague Indian Constitution’s Preamble, and therefore judges in Pakistan need not rely on individual proclivities to circumscribe powers of State organs, like Indian judges do (p. 132-133). The dispensation of representatives’ fiduciary obligations in Pakistan would thus be reviewable by the Judiciary, through the mechanisms provided by the Constitution itself– the un-amendable Salient Features embodied by the Objectives Resolution 1949, and not through resort to the polemical realm of abstract philosophical theories, or to extra-constitutional material. Thus, the intractable conundrum of identifying a constantly shifting “supra-constitution” (whose provisions themselves are unknown and identified on a case-by-case basis), despite their immutability in legal prescription, emblematic of judicial aggrandizement and autocracy, could be avoided in Pakistan (p. 522).

 However, even the SFD as recognized by Khawaja, differs from the SFD recognized by the 8 judges in concurrence with Justice Azmat Saeed- while the former rooted them in the Preamble, the latter said that the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features(p. 371). While they did not provide an exhaustive list, the 8 judges expressly recognized that Democracy, Parliamentary Form of Government and Independence of Judiciary “are certainly included in the Prominent Characteristics, forming the Salient Features(p. 234). Thus the 13 judges who approved the SFD themselves did not articulate a unanimous theory of what the SFD precisely entails, and whether the prominent features of the Constitution or judicial discretion would reign supreme while interpreting Salient Features, which may lead to potentially very different implications.

Moreover, the Chief Justice opined that subsequent incorporation, of the amended Objective Resolutions 1949, (which was originally just a manifestation of the founding fathers’ desires while enacting the Constitution, and hence could not be interpreted as supra-constitutional grundnorm in the face of clear language of the Constitution itself) as substantive part of Constitution under Article 2A, through the 8th amendment, makes it difficult to accept it as an integral, basic feature of the Constitution initially promulgated (p. 73). Justice Khosa posits that acceptance of any one of the basic features as a touchstone or a test of repugnancy or contrariety qua the other provisions of the Constitution would render the entire Constitution vulnerable to challenge in courts of law (p. 585). This would inevitably call for value judgment by the courts instead of allowing the people deciding as to what is good for them, which “would bring serious damage and destruction, if not doom,” to the present constitutional system in Pakistan (p. 586). Further, Justice Nisar asserted that the opening words of the resolution “…the will of the people of Pakistan to establish an order -Wherein the State shall exercise its powers and authority through the chosen representatives of the people” succinctly delineates sovereignty and authority in the body of elected representatives, not judges (p. 474). Nonetheless, as Justice Isa mentions in passing, it may also be argued that substituting the inanimate State with ‘the people’ reveals the precedence of the body-politic over their representatives, and owing to the transient nature of Parliament for prescribed period, it cannot preserve, protect and defend the Constitution at all times- a function which the Judiciary is oath-bound to fulfill (p. 862). Thus widely different strands of interpretation of Pakistan’s constitutional history and epistemology are observed in the judgment.

Thus the SCP’s verdict does not explain how a scheme reflecting the Constitution’s Salient Features which define the Constitution is realistically different from a basic structure, especially when the SC “is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features”. It is open to question how far Justice Khawaja’s own cautionary words against mindless transnational borrowing- grafting of an alien concept onto our body politic otherwise, is as likely to be rejected as an alien organ transplanted in a human body” – have been actually heeded by him and the judges who delivered the majority verdict. This attempt to chart a neutral middle path between complete non-interference and the BSD fails to distinguish itself materially from the BSD, even after the presentation of afore-mentioned arduous and long-drawn arguments.

It is pertinent to mention that critics such as Babbar Sattar have opined that the judgment allows the court to irresponsibly appropriate power for itself, diverting attention from the narrative that roots public support for military courts, in the failures of Pakistan’s criminal justice system, such as failings in ‘due process’ and ‘fair trials’ before ordinary courts, now widely regarded as a sanctuary for terrorists. It is also noteworthy to mention that the concomitant vital question- whether such institution of military courts, without any technical or operational discussion of international and national counterterrorism practices which would actually aid in ending the internal war in Pakistan- has been studiously ignored.

 

 

  • See Dietrich Conrad’s famous argument, widely attributed to be the foundation of the BSD in India- “Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept. So, if for the purpose of legal discussion, I may propose some fictive amendment laws to you, could it still be considered a valid exercise of the amendment power conferred by Article 368 if a two-thirds majority changed Article 1 by dividing India into two States of Tamilnad and Hindustan proper? Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorisation by law? Could the ruling party, if it sees its majority shrinking, amend Article 368 to the effect that the amending power rests with the President acting on the advice of the Prime Minister? Could the amending power be used to abolish the Constitution and reintroduce, let us say, the rule of a moghul emperor or of the Crown of England? I do not want, by posing such questions, to provoke easy answers. But I should like to acquaint you with the discussion which took place on such questions among constitutional lawyers in Germany in the Weimar period – discussion, seeming academic at first, but suddenly illustrated by history in a drastic and terrible manner.”

4 Comments

Filed under Basic structure, Basic Structure in Pakistan, Comparative Constitutional Law, Pakistan

Notes from a Foreign Field: The New Zealand High Court Issues Its First “Declaration of Incompatibility”

(We are starting a new series called ‘Notes from a Foreign Field’, focusing on decisions of other constitutional courts, and constitutional controversies in other jurisdictions, written by specialists from those jurisdictions. In the opening post, Max Harris, a New Zealand lawyer and presently Prize Fellow at All Souls College, Oxford, writes about a recent, important decision of the New Zealand High Court, which broke new ground in the area of judicial review)

On 24 July 2015, Justice Heath of the New Zealand High Court issued a landmark human rights decision, Taylor v Attorney-General [2015] NZHC 1706. The case is worth reviewing for readers outside of New Zealand. it provides an overview of the human rights landscape of a jurisdiction that is often overlooked, presents a further perspective for global debates on prisoner voting, and is an example of robust judicial reasoning in a constitutional context.

The Taylor case arose out of New Zealand’s Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010, which imposed a blanket ban on prisoners voting in New Zealand elections. The position prior to 2010 had been that prisoners serving a prison term longer than three years were banned from voting. Arthur Taylor, a prisoner, challenged the 2010 Act. He argued that it posed an unreasonable limit on his right to vote, under s 12 of the New Zealand Bill of Rights Act 1990.

The New Zealand Bill of Rights Act 1990 is an early example of a statutory bill of rights. The original draft Bill of Rights empowered judges to strike down legislation, but after public opposition to this, the Act reached a compromise solution. It lists a standard set of rights and freedoms, indicates that rights are subject only to “reasonable limits” that can be “prescribed by law” and “demonstrably justified in a free and democratic society” (s 5), but makes clear that legislation cannot be struck down where limits on rights are found to be unreasonable (s 4). The Act allows the Attorney-General to flag up violations of rights at the legislative drafting stage (s 7), and also notes that “[w]herever” legislation “can be given a meaning” consistent with rights, “that meaning shall be preferred to any other meaning” (s 6).

The Act was a model for the UK’s Human Rights Act 1998. However, unlike the Human Rights Act, the New Zealand Bill of Rights Act 1990 does not spell out the remedies available for litigants in the event that a court finds that legislation unreasonably limits rights. In Simpson v Attorney-General [1994] 3 NZLR 667 (Baigent’s case), the New Zealand Court of Appeal found that damages should be available for violations of the New Zealand Bill of Rights Act. What remained in doubt was whether New Zealand courts could issue a declaration of inconsistency or incompatibility (of the kind explicitly allowed by s 4 of the Human Rights Act 1998 in the UK), where an Act imposes an unreasonable limit on rights. That was the key issue in the Taylor case, because Arthur Taylor asked the High Court to issue a declaration of inconsistency with respect to New Zealand’s prisoner disenfranchisement legislation.

Let us consider the judgment. Justice Heath points to the fact that interestingly, the Crown had conceded that there was inconsistency between the legislation and the right to vote, and agrees with the Attorney-General’s preliminary opinion that there was an inconsistency. He adds one further reason why the legislation is an unreasonable limit on the right to vote: it arbitrarily focuses on imprisonment, rather than conviction, thereby allowing a person who is sentenced to home detention to retain a right to vote, though that person may be as equally culpable as another person sentenced to imprisonment.

So far, so uncontroversial. The real question in the case, however, was that given the acknowledged inconsistency, whether the Court has jurisdiction to grant a declaration of inconsistency, in light of the New Zealand Bill of Rights Act 1990 and relevant policy concerns.

The first argument made by Crown lawyers was that a declaration could not be issued in a case where there is no dispute over interpretation of legislation. It was said that the main remedy provided by the New Zealand Bill of Rights Act is an interpretive one: courts can try to interpret away a possible inconsistency with rights, but cannot issue a declaration saying that legislation is inconsistent with rights. Justice Heath considers this argument and rejects it. He accepts that there are some restrictions on when a declaration can be granted. The New Zealand District Court is a creature of statute and cannot grant any declarations (let alone a declaration of inconsistency), and declaratory relief should not be available in a criminal trial, because a declaration represents civil relief that would be inappropriate in a criminal context. (He cites a Court of Appeal decision that notes the inappropriateness of using civil remedies in a criminal context.) But he suggests that these should be the only restrictions placed, in principle, on the issuing of declarations of inconsistency.

Justice Heath points out that earlier courts had said that judges can, and indeed sometimes must, indicate an inconsistency between legislation and the New Zealand Bill of Rights Act. He says further that to allow a declaration of inconsistency would not contradict s 4 of the New Zealand Bill of Rights Act 1990 – the provision preventing judges from striking down legislation on Bill of Rights grounds. Acknowledging the room for “judicial choice”, Heath J reviews earlier case law where remedies (including damages) for Bill of Rights breaches have been developed. He extracts a general principle that “where there has been a breach of the Bill of Rights there is a need for a Court to fashion public law remedies to respond to the wrong inherent in any breach of a fundamental right”. He concludes that Parliament did not intend to exclude the ability of a court to make a declaration of inconsistency.

Justice Heath feels fortified in this conclusion by the fact that a legislative amendment in 2001 allowed declarations of inconsistency in discrimination cases (heard by the Human Rights Review Tribunal in New Zealand). Through this legislative act, Justice Heath says, “Parliament has signaled that it sees no particular objection to that particular remedy being granted”. It would be odd for Parliament to confer this power on a lower tribunal, notes Justice Heath, and to empower higher courts to review use of this power on appeal, but to remove the right of higher courts to issue declarations of inconsistency. Whether a declaration of inconsistency breaches art 9 of the 1688 Bill of Rights (which protects parliamentary privilege and remains part of New Zealand law) or principles of comity between the legislature and the courts are matters that only affect whether a declaration should be issued in a particular case, according to Heath J, not matters that go to the general jurisdiction of a court to issue a declaration.

Addressing whether a declaration of inconsistency is appropriate in the Taylor case, Heath J considers arguments based in the Bill of Rights 1688 and comity. Heath J states that if courts are able to give reasons why legislation imposes unreasonable limits on rights under s 5 of the New Zealand Bill of Rights Act, it is hard to see how a declaration would create any greater intrusion on parliamentary privilege or comity. This is a kind of boot-strapping argument: if s 5 of the New Zealand Bill of Rights Act is constitutionally legitimate (a proposition Heath J assumes), then a declaration of inconsistency must be similarly legitimate.

Courts should not hold back from issuing declarations out of fear that they might be ignored, says Heath J. The New Zealand judicial oath requires decision-making “without fear or favour”. And the Court is, after all, not seeking to persuade – it is merely stating the law (echoing Justice Marshall’s statement from the US Supreme Court decision in Marbury v Madison (1803) 5 US 137). Heath J disagrees with the comments of an earlier judge in an interlocutory decision in the Taylor case that a court might hesitate to issue a declaration where the Attorney-General has already flagged up a Bill of Rights inconsistency in a s 7 report to Parliament. There is no reason why a court “should not reinforce the Attorney’s report”, notes Heath J. He adds that a court should also be able to disagree with an Attorney-General’s report.

Should the absence of a live controversy between parties prevent a declaration? Heath J points out that there is no limit of this kind for ordinary declarations under the Declaratory Judgments Act 1908 (though he doubts whether a declaration of inconsistency could be granted under that Act). Points of “constitutional importance” should be ventilated, says Heath J: “[t]he importance of the right and the nature of the inconsistency are sufficiently fundamental to demand a remedy”.

In this case, Heath J confirms that a declaration of inconsistency will be granted. The case concerns a central aspect of democracy, the right to vote: “if a declaration were not made in this case, it is difficult to conceive of one in which it would”. Heath J notes that “a formal declaration” is more appropriate than “an observation buried in [a court’s] reasons for judgment”. There is no violation of Art 9 of the Bill of Rights 1688 or principles of comity; the comment is on “the consequences of a legislative act”, not the internal workings of Parliament itself. The functions of the Attorney-General’s pre-legislative report and the court are different; the Attorney-General is considering an apparent inconsistency, a court is considering an actual inconsistency. A court’s ruling will also be more accessible. Finally, Heath J says, Parliament’s earlier legislative recognition of declarations in discrimination cases shows a certain amount of approval for the notion of declarations of inconsistency. Heath J notes in passing that there are “powerful arguments” that the earlier limitation on prisoner voting (allowing the vote only for prisoners serving fewer than three years in prison) could be Bill of Rights-compliant. He concludes with the declaration itself, in the following terms:

Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act.

This is the first case in New Zealand in which a judge has issued a declaration of inconsistency. (In an earlier Court of Appeal case, R v Poumako [2000] 2 NZLR 695 (CA), one judge, Thomas J, issued a declaration of inconsistency, and reviewed the arguments for declarations in some detail. But he was the sole dissenting judge in this case.) The declaration has not resulted in any legislative reconsideration of the prisoner voting ban, however. It seems that no law change will be forthcoming. The Crown has not appealed the ruling.

What more general points, then, can be drawn from this detailed review of Heath J’s reasoning in Taylor v Attorney-General?

First, there are parts of the judgment at which criticism might be directed. Given Heath J’s emphasis on how distinct the Attorney-General’s s 7 report is from a court’s later review of legislation, it is surprising that he does not undertake a fresh proportionality assessment of the prisoner voting legislation in this case. Perhaps Heath J felt that in a controversial case like this one, and as the first judge ever to issue a declaration of inconsistency, it would be safer simply to affirm the Attorney-General’s earlier reasoning.   However, it would have been helpful for Heath J to offer further reasoning on this point, especially since prisoner voting bans have been contentious in other jurisdictions, including the United Kingdom, South Africa, and Canada. (An earlier interlocutory decision of Brown J did refer to some of these other cases.) As well, Heath J is a little peremptory in some conclusions. He is quick to accept that declarations of inconsistency should not be issued in criminal trials, when there is no legislative reference to this carve-out. And he is not entirely convincing in his claim that declarations of inconsistency do not undermine Art 9 of the Bill of Rights. Heath J might also have made some broader comments about the proper approach to the separation of powers and dialogue under the New Zealand Bill of Rights Act. Perhaps, however, these are points that might be expected in the judgment of an appellate court. Overall, Heath J’s judgment is admirably careful, considered, and courageous.

Secondly, the effect of the judgment – even if it is not momentous, and only slightly shifts the pre-existing position – is to recalibrate subtly the relationship between the courts and Parliament in New Zealand. New Zealand is a jurisdiction where judges have restricted powers. There is no single codified constitution in New Zealand, just as there is no single codified constitution in the United Kingdom. The generally accepted position is that judges cannot strike down legislation, and parliamentary sovereignty is often invoked. Judges (with some notable exceptions) tend to be deferential towards the executive and the legislature. Against that backdrop, this judgment gives judges slightly greater powers in human rights cases and should cause Parliament to hesitate a little more when passing legislation that might violate human rights. Whether, of course, Parliament actually shows more respect for human rights as a result of this judgment is an empirical question. The early signs are not especially promising: New Zealand Justice Minister Amy Adams, after the judgment was released, said that she was considering the judgment, but there seems to have been no further comment from the Minister since July of this year. Opposition Labour and Green Parties did use the judgment to call for the prisoner voting legislation to be repealed, and this highlights a further benefit of declarations of inconsistency: even if they do not lead to direct political change, they can provide tools for citizens, campaigning groups, and other politicians to criticise legislation.

In the earthquake-prone islands of New Zealand in the South Pacific, this judgment may not have shifted the tectonic plates of constitutional law – but at the very least, Taylor has jolted the constitutional landscape. The case is a significant milestone in the development of the jurisprudence of the New Zealand Bill of Rights Act 1990, and an important reminder of the valuable role that courts can play in clarifying matters of principle – and upholding human rights.

Leave a comment

Filed under Comparative Constitutional Law, Judicial Review, New Zealand