This is a single section from Chapter 3. Read the full chapter here.

Basic constitutional principles

New legislation should respect the basic constitutional principles of New Zealand law.

 

The rule of law: The rule of law is the most fundamental constitutional principle in New Zealand law and incorporates a number of subsidiary principles. The full scope of the rule of law is the subject of debate, but at its core are the following principles:

  • the law must be clear, accessible and apply to everybody (private citizens and the Government);
  • human rights must be adequately protected, and proceedings before courts and tribunals must be fair;
  • public powers must be exercised fairly and in accordance with the law, and must never be exercised arbitrarily;

The principles and values that follow all stem from, or uphold aspects of, the rule of law.

 

Equality before the law: Everybody is equal before the law and is subject to it. The application of legislation to the Government is complex and dealt with in more detail in Chapter 10.

 

Parliamentary sovereignty: Parliament is the supreme law-making body of New Zealand and comprises the House of Representatives and the Governor-General. The House of Representatives has the exclusive power to regulate its own procedures. One Parliament cannot prevent a subsequent Parliament from repealing or amending existing legislation, or from passing new legislation. The courts can neither invalidate legislation passed by Parliament nor interfere with the legislative process. It is often said that Parliament can legislate to do anything. Yet this does not mean that it should, particularly where human rights or fundamental principles are affected.

 

Separation of powers: Each branch of government (executive, legislature, and judiciary) must perform only those functions associated with that branch and not intrude into, or assume the functions of, another branch. This principle helps to prevent the concentration of power in one branch of government and helps to reduce the potential for abuse. While the executive/legislature divide is not always strictly adhered to in New Zealand (Ministers must be members of Parliament), stringent protections must be kept in place to keep the judiciary separate from the other branches.

 

Judicial independence and impartiality: Certain decisions must be made by judges independent of the Government. Judges interpret legislation and are the source of the common law. They decide disputes between individuals and between individuals and the Government. Courts are the only institutions that can impose criminal convictions or sentence people to imprisonment.

To properly perform these functions and to maintain public confidence in the judicial system, judges must be impartial in respect of the matter before them, and be independent of the executive and legislature. Legislation that affects a judge’s appointment, tenure in office, or financial security will potentially affect judicial independence. Measures that create evidentiary presumptions, minimum or mandatory penalties, or restrict remedies also affect judicial independence and must be considered with care.

 

Free and fair elections: Members of the House of Representatives are chosen by a process of regular free and fair elections in which all citizens and permanent residents may vote and put themselves forward for election (subject to some restrictions in the Electoral Act 1993). Any attempt to affect either the process by which elections are conducted or the eligibility criteria to vote or stand as a candidate will be the subject of considerable scrutiny.

  

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