Howard's End: What Our Country Can Do For Its MPs
News over the weekend that MP's have rushed through a clause in their pay and perks legislation putting them in the same class as the Governor-General in being exempt from some income taxes, again raises serious questions about the powers of our Parliament to do anything that it wants. Maree Howard writes.
It's not what your country can do for you, it's what you can do for your country.
I was reminded of those words by an ACC long-term claimant who phoned me on Sunday and said: "There are thousands of us, so through our Internet message board perhaps it's time we tried to bring some justice and equality back into this country by starting a new political party focusing on the interests of the people and our beautiful New Zealand."
When asked what he thought the name of a new political party might be he said: "True Labour."
The outburst was prompted by news that a new tax clause, rushed through Parliament in just 28 minutes last Thursday, now means that MP's allowances for travel, accommodation, attendance or communication services will be treated in a different way to other New Zealand taxpayers - exempt from tax.
The perk includes personal travel by MP's and their families, and subsidised personal overseas trips. The change was deliberately designed to thwart attempts by the IRD to tax MP's and their families.
So exactly how sovereign is our Parliament to do anything it wants? Or is it claiming something to which it is not rightfully entitled?
Present convention is that our Parliament could pass a law tomorrow which said all blue eyed babies had to be killed or all red-headed people had to be scalped.
Or perhaps that elections from now on will only be held every 20 years. That would then be the law. On present thinking there is not a single thing anyone, including the Courts, could do about it.
The Courts have already ruled that it's through the ballot-box where changes are made. And yet, it is a frightening political power restrained mostly by commonsense, equality and political survival.
Last Thursday, in just 28 minutes, our MP's stepped over the boundary.
In 1958 Lon Fuller wrote in the Harvard Law Review about Hitler's rise to power.
He said" Hitler did not come to power by violent revolution. He was Chancellor before he became the leader. The exploitation of legal forms started cautiously and became bolder as power was consolidated. The first attacks on the established order were on the ramparts which, if they were manned by anyone, were manned by lawyers and judges. These ramparts fell almost without a struggle."
In New Zealand, power has been consolidated into Parliament, and to Government and its organisations, and the ramparts of established order, of equality and of decency and integrity, are falling almost without a struggle.
Last Thursday in Parliament bore witness to that. It was a dark day for our democracy.
Our Parliament claims its sovereignty and privileges from the English Bill of Rights 1689 which was signed into law in the English Parliament on 16 December by William of Orange.
Legally, it is called (1 Will & Mary sess. 2 c 2 1689) and it was incorporated into our Imperial Laws Application Act again as recently as 1988.
It says in article nine - Freedom of Speech: "That the freedom of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."
Notice it does not say 'shall not' or even 'will not' or even 'cannot'- it says 'ought not.'
And yet down through the years, this article has been taken to mean absolute and complete sovereignty for our Parliament to do anything and everything it wants without fear of impeachment.
But in reality, what those Parliamentarians were doing at the time as victors of what is called the "Glorious Revolution" in 1688/89 was seeking to protect, not to change the fundamentals of the Constitution.
One of our family ancestors on my husband's side was there. Sir Robert Howard was a great human rights fighter and a member of both Treby's and Somer's Rights' Committee's. He said during the debate:
"Rights of the people had been confirmed by early Kings both before and after the Norman line began. Accordingly, the people have always had the same title to their liberties and properties that England's Kings have unto their Crowns. The several Charter's of the people's rights, most particularly Magna Carta, were not grants from the King, but recognitions by the King of rights that had been reserved or that appertained unto us by common law and immemorial custom."
The intent throughout that debate was clear - reserved fundamental rights which could not be tampered with by anyone.
The conservative Burke also extolled the virtues when he wrote:
In the 1st of William and Mary in the famous statute called the Declaration of Right, the two Houses utter not one syllable of a right to frame a Government for themselves. You will see that their whole care was to secure their religion, laws and liberties that had long been possessed, and had been lately endangered.....You will observe that from Magna Carta to the Declaration of Right, it has been the uniform policy of our Constitution to claim and assert our liberties, as an entailed inheritance derived to us from our forefathers, and to be transmitted to our posterity; as an estate specially belonging to the people of this kingdom without any reference whatever to to ny other more general or prior right."
In fact, at the time of James II it was the Parliamentarians who were on the defensive and it is the Parliamentarians who deeply fundamental law first.
The right to use fundamental law to rebel thus resumed a status as a lawful step in securing adherence to the fundamentals, just as the Barons had explicitly negotiated a right to rebel with King John in Magna Carta over four hundreds years earlier.
So the perception that our Parliament has absolute sovereignty from the Bill of Rights 1689 remains fundamentally flawed.
For some inexplicable reason - probably power - the Courts have relied on the writings of lawyer Dicey and upon the political fact of the Glorious Revolution. In doing so they have acquiesced in the aggregation of all power in the hands of the Parliament. But there is little historical support for the interpretation the Courts have placed upon the Revolution.
The work of Dicey at the end of the nineteenth century fortified the relationship between the Courts and the Legislature and since that time it has been impossible to deny the validity of a law passed by Parliament for a substantive reason. For reasons best known to themselves the judges will simply not accept anything but the absolute sovereignty of Parliament.
In 1974 Lord Reid said in the Pickin case that the supremacy of Parliament was fully demonstrated by the Revolution of 1688 and any idea otherwise was obsolete.
Absolute nonsense. The Revolution demonstrated no such thing and he conveniently ignored the fundamental principles prior to 1688.
It is very clear that what was being done by those Parliamentarians was to prohibit the Monarch and others hostile from using any means of harassment to block or interfere with the processes by which Parliament makes laws - nothing more than that.
Parliament is sovereign in that sense only. Not in the sense that it can do no wrong or that no one may question the validity of a law passed by Parliament.
It is quite wrong to believe that those early architects and champions of the already fundamental rights, liberties and free speech were busy making some kind of Trojan Horse, from the belly of which could never emerge a means of safeguarding those very ancient rights and liberties which they held so vital and fundamental and law could never be challenged if it was passed by Parliament.
That is not to say that Parliament cannot pass law. But when those laws override the ancients and hard won principles they must be open to challenge by the Courts - otherwise dicatatorships arise.
Last Thursday, 12 December 2002 in a New Zealand Parliamentary democracy, a new class became entrenched - the political class of the dictator.