POLICY - WHO MAKES THE LAW? - Reining in the Supreme Court

The King-in-Parliament is free to review of the first twenty years of the Supreme make any law and the government is formed by Court’s jurisprudence.i It also brings to bear in parliamentarians who enjoy the confidence of the the New Zealand context the many insights House of Representatives. [...] His critique of the Fitzgerald judgment,iii in which the majority of the The proper constitutional role of the courts Court eviscerated the “three strikes” legislation, is a subject of sharp debate in many parts of is compelling. [...] It is not a part of the laws of New Zealand immediately description or prediction, fictionalising that history before the commencement of this Act, shall by overlooking the many changes made by the continue to be part of the laws of New Zealand.” courts, but a statement of judicial responsibility: to identify the rights of the contending parties now Because the common law is judge-made, lawyers by. [...] has created regarding the recognition of tikanga within the common law; and A principles-free vacuum • The Court’s incoherent and unconstrained Having overturned the rule in Loasby for the approach to the common law method, which recognition of tikanga as law, the Court went on offends both the rule of law and at least two to replace it with… nothing. [...] The shortcomings in the majority’s judgment suggest a Court less concerned about “…the function of this Court is to declare the New Zealand’s continuing commitment to the law of Aotearoa/New Zealand and we must be rule of law and the common law method than mindful of the values that in combination give captivated by the allure of making a grand us our own sense of community and common symbolic ges.