CONSTITUTIONAL POSITION

Evening Post, Volume CXIII, Issue 98, 27 April 1932, Page 11

CONSTITUTIONAL POSITION

STATED BY SIR FRANCIS . ■': BELL

■ The constitutional1 position is set out by Sir Francis Bell in a letter to "The Dominion" as follows: —

"The Public Expenditure . Adjustment Act of 1921-22 by section 3 expressly exempted the Judges of the Supreme Court from the reduction in salaries and'wages effected 'by its general provisions. As Attorney-General I bad then to insist upon long-estab-lished constitutional principles recognising and affirming exceptional privileges essential to tHe dignity and independence- of, the members of the Supreme Court of Justice. "I have not now the responsibility which office then imposed and have not now any claim to speak or write with authority, but. my duty of the former year may excuse the desire of present publicity. ' '-: '■-''.' "During the reigns of the Tudors and the Stuarts the Judges, paid principally by fees and holding office '-at the pleasure of the Crown, had in many instances proved subservient to the reigning Sovereign to an extent grave-" ly affecting the.rights and liberties, of the subject. The Bill of Bights—a statute of the first year of William and Mary (1688) gave expression to demands for redress Of many encroachments upon freedom, but failed to,. require independence of the judicature. That defect in the Bill of Bights was almost immediately recognised, but no opportunity for its remedy occurred until the death of Queen Mary rendered necessary consideration of settlement of the succession t*o the Crown. The Act of Settlement 12 and 13. William the Third, passed in 1700—twelve years after the Bill of Bights—in a separate section (3), reciting the 'necessity for further provision for securing our religion, laws, and liberties' enacted that 'Judges' commissions be made.quam div se beno generint' (i.e., during good behaviour) 'and their salaries ascertained and established, but upon the address of both Houses of Parliament it m*y be'lawful to remove them.' . •

"The maintenance of the print^ple established by that section of the Act of Settlement is still, as it then was, the charter .and safeguard of justice. In England, section 3 was in effect repeated in the/Judicature Act of 1875 and (consequentially, but, I think, unfortunately) repealed by a General Eepealing Statute of. 1881. Every clause of the Act of - Settlement was in full force and effect in its original terms in 1852 when tlie New Zealand Constitution Act of 1852 was passed by the Parliament of the United Kingdom at "Westminster, and that Parliament included in our constitution a proviso to section 65 that 'It shall not be lawful for tho said General Assembly by any such Act to make any diminution in the-salary of any Judge to take effect during the continuance in office of any person being such Judge at the time of the passing of such Act.' The Constitution Act itself conferred no power on the Parliament of New Zealand, to alter its provisions, but five years later, in 1857, the Parliament at "Westminster passed an Act empowering the New Zealand Legislature to amend or repeal any of- the provisions of the Constitution Act except the provisions of certain specifically enumerated sections'. , One of- those excepted sections is section 65, the proviso to. which I have quoted. It is therefore beyond question in law that nothing but an Act of the Parliament of the United Kingdom can empower the Government or Parliament of New Zealand to diminish the statutory salary of any Judge of the Supreme Court during the tenure by that Judge of his office.

"But to me it seems equally beyond question in principle that no "such power should be * exercisable. The limiting provision in. tiur Constitution is not exceptional—it is to be found