373 / 482
GAZETTE
OCTOBER 1989
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
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.
How do you respond, though, to
the literslist, conservative, strict
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
351