The Gazette 1989

OCTOBER 1989

GAZETTE

constructionist judge who ssys you ere opersting not ss s judge but e politicisn? We don't construe the Constitution in such a way that you have to make it deviate around all the institutions existing at the time. To draw an analogy: in a new country like, say, Australia or Canada, the railways are built in a straight line and the people follow the railways. In the older European countries the railways had to follow very cir- cuitous routes to go and search out all the people. Now our constitu- tional interpretation will be the straight line one. We don't bend the Constitution to take into account some existing institution. We take the Constitution as meaning what it says. It is written in relatively informal language. The more conservative view, on the other hand, would be to try to get the Constitution to embrace all pre- existing institutions and concepts, which would be like building your circuitous railway. For example, many common law doctrines were thrown overboard because they conflicted wi th the concepts of the Constitution. Some, what I would call old- fashioned, lawyers might have thought that anything which con- flicts wi th the common law must be construed narrowly. We don't accept that. Anything which con- flicts wi th the wording or the spirit of the Constitution is automatically out, whether it be a law or whether it be a common law doctrine. There wee e referendum on the ebortion question end the court wes mede quite centrel to it. A body of people were pressing for a constitutions! emendment on the grounds thst if there were not one the court would chsnge the lew on sbortion, end permit it. Whet were your views on this? Theoretically it is possible, in the sense that the Supreme Court might arrive at the conclusion that this is a matter of private life, as it decided in the question of the importation of contraceptives. That was the fear, that the court might have the same approach to it. My own personal view is that it pro- bably wasn't necessary. In t wo judgments I had expressly pointed out that in my view the provisions

appointments are confined to members of the bar. They might be influenced by general reputation, or perhaps the advice of the Attorney- General, but I think in most cases most members of the government would never have even met most people who are appointed to be judges. How did you respond to those who seid the Supreme Court was in danger of becoming the third arm of the legislature? We responded to that quite simply. We said that judicial power is a co- ordinate of government, therefore it has its own function in the gov- ernment of the State. The Con- stitution sets out that the organs of government are the judiciary, the executive and the legislature. We are not subordinates of any other department of State. Therefore the fact that our decisions may appear to affect the government of the country is to be expected, because we are part of the government of the country. Do you feel thet in being en activist judge you are not really being a judge, you are being a politician? No, I don't feel that at all. The Constitution, like the United States Constitution, is written in the present tense. Therefore, if you come to construe a particular Article in this year, you reason it in the light of this year, not in the light of the year it was adopted by the people. There was a view at one time that one should try to ascer- tain what people thought about various things at the date of the coming into operation of the Constitution, but that has been abandoned long since. We don't have to hark back to what some- body thought forty or fifty years ago. Therefore certain values may be more or less important in a different age. For example, the guarantee of free primary educa- tion is contained in the Con- stitution. It doesn't mean it is the same standard of education as it was, because the 1980s version of education may require a very much higher standard than the 1930s.

More than likely the Prime Minister was expressing his own personal view, and perhaps that of one or t wo others. It wasn't presented as a view of the government collect- ively. Most members of the govern- ment would probably have been unconscious of the ideas involved. But of course governments change, and members of the government change. If decisions are given which appear to impede policies, the civil servants are perhaps the first to notice. They then advise the Minister t hat the cou r ts are becoming difficult or obstructive, or something like that. It is very noticeable that when a particular party is in power it tends to view the courts wi th a less liberal eye than when it is in opposition. Whatever party is in opposition always sees more merit in the court than the party in power. I think that is the natural order of things in every country. What was the reaction of govern- ment in those early days when you were making decisions they didn't like? There was no overt reaction whatsoever. There wouldn't be a word of criticism uttered publicly. It is an unspoken rule that no person in politics ever suggests the courts are wrong. Likewise the judges, in discharging their duties in interpreting the law and the Constitution, would never venture any opinion on the activities of parliamentarians. That is the unspoken rule. But you knew, others knew, that there was a lot of activity behind the scenes which was implicitly critical of what the court was doing. Well, yes, to an extent, because naturally governments are satisfied that what they are doing is the right thing. If they find that the courts think otherwise, they may feel aggrieved. But I don't think they take it to heart t oo much. Occasionally it may affect, per- haps, their choice of judges in the future. But again, they are not really in a position to know what anybody would turn out like. Most members of the government would not be personally acquainted wi th most members of the bar and judicial

How do you respond, though, to the literslist, conservative, strict

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