The rule of law

• Michael Valley
• 11 years ago
• Categories: corruption, democracy under attack, Spying

In the 50s and 60s, two eminent jurists by the names of Hart and Fuller debated what makes a legal system. Nazi Germany was their real-world example.

Hart was a positivist* – he said a legal system is a legal system if people call it one and act like it (if people call it a duck, it’s a duck). Hart said that the Nazis had a legal system – one that made evil laws – but a legal system nonetheless and, so, people’s actions in accordance with it were legal, even if immoral.

Fuller, a natural law jurist, said you need the rule of law (amongst other things) to have a legal system. Otherwise, you’ve just got a bunch of bullies doing what they want and saying its OK. Fuller said that the Nazi’s didn’t have a legal system because they had immoral ‘laws’, secret ‘laws’, retrospective ‘laws’, because citizens were denied the right to challenge the exercise of powers purported granted under the law in court, and because State officials were not in practice bound to the ‘law’ at any rate. Put it another way, Fuller argued, people were not morally bound to adhere to the exercise of arbitrary power.

We follow Fuller’s model more than Hart’s – they prosecuted Nazi war criminals for breaches of human rights and, in doing so, denied the defence that they were just obeying orders that were legal under the Nazi government from duly empowered superiors.

Do we have the rule of law in New Zealand?

Of course, I’m not saying we have a situation like Nazi Germany (it’s only in this post because it was the subject of the Hart-Fuller debate).

But is our system of rules and government meeting the test to be considered a moral system of law? Or is it just bullies doing what they want? Is our State exercising arbitrary power?

Consider:

• Canterbury is ruled by a government minister who has the power to overrule legislation at his will. His decisions are not reviewable by the courts. This can include forcing the local government to spend money (say, on huge convention centres and stadiums that the council doesn’t want) and, if necessary, force them to sell assets to pay for that spending.
• The Government last week passed a law giving itself the power to override local planning laws if it doesn’t have an agreement with the council that sets those laws.
• It also passed a law while preventing Parliament knowing about the consequences of that law. The law itself gives a minister the power to decide caregivers’ right to pay and then set that pay in breach of their human rights. On top of that, it forbids people from challenging the minister’s exercise of their powers in court.
• A deal was announced to sell law to a casino. The full details of that agreement and its consequences are being kept secret and will continue to be kept secret – only the government and the corporation are allowed to know.
• This week, the public’s watchdog on the spies found that it was “arguably not illegal” for the spies to spy on New Zealanders despite the law clearly stating it is. The full report has been suppressed and we’re told that the State’s agents going “arguably not illegal’ things is OK. Oh and a law is being rushed through to make legal any repeat of their illegal actions.
• Also, this week, the Police have said that no agent of the State will be held accountable in any form whatsoever, let alone charged, for illegally detaining people at gunpoint and searching them without cover of police powers because they were acting in excess and outside of those powers.
• In related news, we learn that the lawyer appointed to investigate the unlawful spying by the GCSB on Kim Dotcom (which the watchdog also excused) is also appearing for the Police against Dotcom in court.

This is not a comprehensive list. It’s just the stuff that’s been in the news in the last few days.

The last ones are particularly disturbing. It’s clear that the State’s security apparatus is not subject to the law of New Zealand. The law can be ignored with impunity. The watchdogs and the foxes of the State will act in cooperation to ensure the foxes do whatever they want. And, if the violations become publicly embarrassing, the government will just amend the law.

But it is the wide and unchallengeable powers being given to ministers that are, arguably, more of a threat to more New Zealanders.

The question is, what’s next? How much further will this government extend the arbitrary power of the State?

 

*(that’s short-hand for unimaginative literalist with a tad of the authoritarian thrown in)

Update: The Herald’s take: