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Anthony Willy

Privilege and the Rule of law

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Liberty and equality, two of the catch cries of the French Revolution, are precious and fragile commodities. They were hard won: Thus a civil war in England in the mid seventeenth century resulting in the temporary abolition of the Monarchy and the establishment of a Republic. A revolution in France in the late eighteenth century which also brought down the monarchy and ushered in a Republic and the reign of terror. A civil war in America in the mid nineteenth century to allow African Americans the protection of The Constitution,  to mention but three. All of which involved bloodshed and massive social dislocations. These events are comfortably distant now and that allows us in New Zealand to take for granted the enjoyment of the civil rights which emerged from them. In this we are encouraged by the misleading notion that these rights are protected by our ability to participate in a democratic process for the election of our governments.

Nothing could be further from the truth. Having the ability to vote out a government every three years says nothing about the political reality that while in office Parliament is sovereign, and is as legally competent as any dictator to legislate for the curtailment of our liberties. It is impossible under our constitutional arrangements to entrench fundamental rights such as are contained in the New Zealand Bill of Rights Act. Parliament is lawfully able to curtail or abolish those rights, because it requires only a simple majority to repeal the entrenched statute. We have no written Constitution backed by a Constitutional Court such as The Supreme Court of America, enshrining those rights. What we do have, which exists above and beyond the reach of whatever may be the contemporary political arrangements is The Rule of Law. This embodies the notion that freedoms are protected not by the dicktat of any person or collection of people, but by the Law to which all, high or low born, are subject. This notion is so central to the way we order our society that it is now little discussed, and one suspects no longer widely understood. It is a safeguard of great antiquity probably having its origins in the Greek city states, but certainly established in England by the time of the signing of Magna Carta in 1215, and finding expression in The Bill of Rights in 1689.[1]

The importance of The Rule of Law in the United Kingdom was recently given emphasis and placed in its contemporary setting by Lord Bingham who died in 2010. He was an exceptionally gifted English lawyer and jurist. In his life time he was the only person ever to hold the offices of Master of The Rolls[2], Lord Chief Justice, and a Lord of Appeal in Ordinary.[3] Six months before he died he had published a book entitled “The Rule of law”[4] For what might have seemed to be a dry legal text the book received flattering reviews[5] and not merely from members of the legal community. By virtue of his experience and wisdom Lord Bingham in his retirement was equipped to write on almost any legal or constitutional topic. It is highly significant that this most eminent of jurists, so close to his death, should choose as his final contribution to the body politic, the subject of the Rule of Law. In the book he demonstrates simply, and beyond argument that nothing is more important to the preservation and enjoyment of the freedoms which we now take for granted; political, economic, social, religious and other than the protection of the Rule of Law. Indeed the notion that there is such a rule is of such antiquity[6], and has so entered the collective conscience of anybody who has cared to think about it that there is a danger of the idea loosing much contemporary meaning. It is for this reason I think that Lord Bingham chose the topic as his final contribution to the public weal; to refresh the concept, and give it its proper place in the contemporary constitutional arrangements which govern our lives.

Many eminent Constitutional lawyers have written about the Rule of Law: Professors HRC Wade and Godfrey Phillips in their seminal work “Constitutional Law”[7] said of the Rule of law:

The supremacy of the rule of law has been since the middle ages a principle of the constitution[8]

And speaking of the three elements of the Rule as expounded by Professor AV Dicey in 1885[9] Wade and Phillips said the second meaning of the rule of law is:

equality before the law or equal subjection of all classes to the ordinary law of   the land administered by the ordinary courts.

Finally, because this is in no sense a lecture on Constitutional law but merely to establish the pedigree of the principle of the Rule of Law as it relates to a political democracy Professor W Ivor Jennings, a noted constitutional lawyer when writing in 1933 placed this emphasis on the essential ingredients of a democracy:

A people that is free to change the direction of public policy by turning out a government will usually insist that among citizens engaged in the same kind of activity the laws should apply equally irrespective of race, religion, colour, social importance or wealth and should be administered impartially among all citizens.[10]

In describing what will occur when the Rule of law is ignored or compromised Lord Bingham gives an chilling example of how the Apartheid legislation  came into being in South Africa in the 1950s. Citing from a former Chief Justice of South Africa he notes that the white population were told that the unequal treatment afforded to non whites was necessary in order to target Communists and terrorists and not law abiding people. Comforted by this explanation (which has a surprisingly current ring about it in the context of the “war against terror”) most of the white population remained silent in the face of the abuses of human rights which followed.[11]

History is replete with similar examples of what occurs when the Rule of law is replaced by the rule of man thus; Between 1894 and 1915 the Turkish Sultan sanctioned the massacre of  one and a half million Armenians for no other reason that they were Christians and regarded as “vermin” by the Muslim Turks. Perhaps the best  documented example of what can occur when the rule of law is replaced by the whims of a Ruler, and one which retains contemporary relevance  is the gradual erosion of the rights of the Jews in Germany throughout the 1930s made possible by the abrogation of The Rule of Law  because in Sir Ivor Jennings words the laws were not applied equally irrespective of race religion and colour.

The appalling departures from the Rule of law in the discrimination against the Jews began with small erosions of their rights. Thus such requirements for example that: they register their presence within the state, that the children be segregated in school class rooms, they be prevented from holding any public office, or attend schools of higher learning, that if medically qualified they could attend only Jewish patients, that they were forbidden to marry a non Jew, and the final indignity before the holocaust proper that they wear a yellow star as a badge of shame. All of which was grossly unfair, but compared with the pogroms to which they had been regularly subject down the ages throughout Europe[12] it seems they were considered bearable, evidenced by the fact that the majority of European Jews did not seek to escape their homeland during this period. It was not until1941 that the incarceration, torture and murder of Jews on an industrial scale got underway, and of course by then it was too late.

Similar examples can be found in Stalin’s Russia (which had a written constitution protecting the right of the individual and giving effect to ingredients of the rule of law), but which was cynically ignored by successive Russian rulers. In Communist China Mao Zedong’s philosophy was that; “political power came from the mouth of a gun,” and the law was as propounded by the Communist Party, and no other.

New Zealand 2014

The purpose of this brief and of necessity incomplete excursion into the constitutional significance of the Rule of Law is to examine the constitutional health of New Zealand in 2014, a country which any informed commentator will assert pays careful attention to the observance of the Rule of Law. We certainly have all of the trappings: a democratically elected Parliament with universal franchise, a strong Judicial tradition, the members of which enjoy guaranteed tenure, and are independent of Parliament and the Executive, the process of judicial review by which the decisions of officials and Parliament can be test for legality and due process, a Bill of Rights which enshrines all of the content of the rule of law in unambiguous terms. So it would appear that constitutionally all is rosy in this garden of ours. And so it is with one worrying exception and that is the growing trend in some areas of public policy towards preferring the economic and civil rights of Maori people above those of non Maori, for no better reason than their ethnicity. No other ethnic group is seeking privileges not available to all, but the same arguments would apply if one should emerge.

Some aspects of the preference sought and granted to Maori over the years are relatively innocuous such  as; race based  scholarships at schools of higher learning, and payment of tax payer funds for race based education programs such as Te Kohanga Reo[13] These sort of initiatives have been widely accepted, or at least not opposed by the majority of the population as a means of redressing the imbalance in the relative economic and social status of Maori when measured over a range of indicators including: health, incomes, employment opportunities, educational attainments and involvement in anti social activities. Generally it can be summed up by asserting that Maori are over represented in all of the wrong statistics, and successive governments have attempted to redress this imbalance along the lines that a little reverse discrimination, and erosion of social equality is good for society as it saves the cost in human and economic terms of the of allowing the disparities to continue, and in the way of these things, to widen.

There can be no doubt that for example in the administration of the criminal law Maori are significantly overrepresented in the Courts on a population basis compared with other ethnic groups in New Zealand society. It is the lot of any experienced judge sitting in the criminal courts to be faced on a daily basis with a disproportionate number of Maori offenders given that Maori occupy 14% of the overall population.[14]The public draws its own conclusions from this somber fact, but what they don’t see, which Judges, social workers, Police and the like do, are the stories behind the offending. Any Judge having read hundreds of probation reports, police summaries of fact, victim impact statements and the like (and most have) will know that almost without exception the causes of the offending have their roots in a depressingly familiar catalogue of circumstances including: broken families, violence,  physical or sexual suffered either by the defendant and or other members of his or her family, a lack of any love or affection anywhere in the upbringing, unrestrained drug taking and unemployment (often down to the third generation).[15] All of which contributes to a lack of hope for the future,

So serious has this overrepresentation become in the criminal offending statistics that in the recent case of Mika v The Queen[16] a senior and responsible counsel argued both before the trial Judge and The Court of Appeal that his client should receive a discount of 10% on the otherwise correct sentence of six years and nine months imposed by the Trial Judge because in counsel’s submission the defendant is disadvantaged by virtue of being a Maori. In rejecting the submission the Court pointed out that to some such a submission would appear to be offensive and that whereas s. 8 of the Sentencing Act 2002 requires a Court to take into account the personal, family, community and cultural background of an offender[17] in imposing a sentence it says nothing about the offender’s ethnicity. The Court said

an absolute requirement that a court allow an offender a fixed discount against an otherwise appropriate starting point solely on account of his or her ethnicity is of such fundamental and far reaching importance to sentencing policy that it could only be sanctioned by Parliament.

This is a clear application of the principle of the Rule of law that offenders of similar culpability should be treated in the same way.

More cynical members of the public dismiss the over representation of Maori in the crime statistics  as; “bad potty training” being no excuse for criminal offending, but it is very much more than that, and can be relatively easily rectified in some instances by improving the social environment,  health and educational opportunities of the individual. Hence the modest reverse discrimination initiatives in the areas of education, access to health and the like have been widely accepted. In the context of the strict implementation of the Rule of Law such efforts are of course an erosion of that principle because they offend the notion that people engaged in the same activity should be treated equally, be able to access the same opportunities, and suffer the same penalties  without regard to ethnicity, religion etc. To date that has been a price the general public has been prepared to pay in the hope, no doubt that as the lot of the deprived minority improves so they will more readily assimilate into society and the adverse effects on society of their deprivation, will lessen. There is some evidence that this is happening as Maori educational attainments multiply so society is seeing more joining the professional ranks[18] and emerging as capable and shrewd business people, trades people and the like. Health among Maori also seems to be improving as the recent immunisation statistics show and it is not fanciful to sense a new optimism among Maori people, as they manage and grow their recently acquired assets to best advantage.

If matters rested there it is unlikely there would be cause for concern about the health of the Rule of Law, but they do not. In addition to these modest but effective departures from the equality component of the Rule of Law Maori are embarked on making more and more strident claims to unequal treatment based solely on their ethnicity. Among the more worrying are: Claims of a political nature for example to share in the sovereignty of New Zealand,[19] claims to unelected representation as of right on a number of public bodies such as Regional and District Councils, claims to the right to occupy increasing areas of the fore shore and seabed to the exclusion of other members of society,[20] claims to a rent from assets such as geo thermal steam, and increasingly to share in the value of river water where it is of some economic significance.[21] There are also claims to intellectual property rights to vegetation which grows commonly in New Zealand, and to the air waves, on the basis these are treasures which are protected by the Treaty of Waitangi. These claims are facilitated by the growing trend towards provisions being inserted into plans prepared by regional authorities under the Resource Management Act giving emphasis to often vaguely worded Maori rights and claimed privileges.[22]

The basis for these claims rests solely on the proposition that the claimants are to some extent of Maori descent. If successful therefore they are thus in clear breach of a fundamental component of the Rule of Law. If such claims are to be granted solely on the basis of race, then what next. No member of the society any longer has the protection of the equal treatment component of the Rule of Law, and as a concept regulating the conduct of the affairs of society The Rule of law is fatally compromised. The inevitable consequence is that New Zealand will cease to be a society in which the Rule of Law is paramount, to one in which race based privilege or some other criterion depending on which group is seeking the privilege, becomes the deciding factor in who gets what benefits from society, and what opportunities are open to whom.

What those seeking this race based privilege fail to understand is that in a democracy it is the minorities who are in danger of being run over by the majority, and at the last census those of European extraction are shown to make up 70% of the population, all other groups are a minority, and at 14% of the population no group in society needs the protection of the Rule of law more than those claiming to be Maori.

It can be said with confidence that if one had to isolate two drivers motivating  immigration to New Zealand from the old world they were: to escape a society based on the privilege of birth (be it social standing or wealth), and to seek a land of opportunity where it is the character and hard work of the individual which dictates success or failure, not who one’s father is, or owned, or where one was educated. To now allow for the revival of race based privilege giving one group the right to share disproportionately in the benefits of society is to betray the hopes and aspirations of those who took the long and dangerous voyage to the other side of the earth, and who with their descendents have contributed so much to the prosperity of New Zealand. A country whom many visitors, and would be immigrants from less favored parts of the globe have come to regard as about as good as it gets.

We should reflect on the chilling warning of  Pastor Martin-Niemoller of where the gradual erosion of fundamental rights enshrined in the Rule of law will lead. His words uttered as he was taken to a German concentration camp, and death, are as relevant today as they were in 1937:

First they came for the communists
and I didn’t speak out because I wasn’t a communist.

Then they came for the socialists
and I didn’t speak out because I wasn’t a socialist.

Then they came for the trade unions
and I didn’t speak out because I wasn’t a trade unionist.

Then they came for me,
and there was no one left to speak for me.


[1] From which the American colonists borrowed heavily in establishing their written constitution.

[2] The premier Judge presiding over the civil jurisdiction in England and Wales

[3] Peers authorised to sit as Judges in the what was the final court of appeal for the United Kingdom,(now the Supreme Court) and familiar to New Zealand as providing judges to sit in the Judicial Committee of The Privy Council

[4] Allen Lane 2010, later published by Penguin Books in 2011

[5] “Beautifully written, the book of the year that I am likely to read again and again” (Chris Patten- the last Governor of Hong Kong, “This closely argued and very readable work serves as a lucid restatement of the importance of the Rule of Law”, Gideon Rachman Financial Times books of the year

[6] Aristotle is recorded as having said “it is better for the law to rule than on of the citizens…so even the guardians of the law are obeying the law- Politics and Athenian Constitution Book III pg. 97

[7] Longman Green and Co. new impression 1957

[8] Above pg 49

[9] Introduction to the Study of the Law of the Constitution, Macmillan

[10] W Ivor Jennings “The Law and the ConstitutionUniversity of London Press Ltd.1933

[11] The Rule of Law (above) pg 135.

[12] The pogrom of 1895 in the Pale of Russia-the area where the Jews were allowed to live, murdered over 800,000 souls, and for no other reason than their religion.

[13] Now it seems despite the money spent and promotion of the idea sharply in decline.

[14] The 2013 census figure.

[15] One Magistrate in Dunedin in the 1970s routinely cancelled young offenders driving licences for non motoring offences which meant that a whole area of otherwise suitable work was closed off to the offender, and compounding the problem was henceforth regularly before the courts for driving while disqualified and the criminal offending associated with unemployment.

[16] CA 688/2013 Judgment 12 December 2013.

[17] As enunciated in Nishikata v Police HC Wellington AP 126/99 judgment 22 July 1999

[18] Justice Christian Whata who appeared before the writer in a prolonged case lasting some months ranked among  most competent and persuasive advocates with a fine sense of the ethics and practices of the profession before his elevation to the High Court Bench.

[19] Evidenced by the terms of reference of the Constitutional Review Committee resulting from an MMP bargain with the Maori Party and which has now reported and among other recommendations proposes that there be an Upper House comprised of 50% Maori and 50% non Maori members. .

[20] An unknown number have been lodged.

[21] See the recent decision of the Supreme Court in the Mighty River Power case . [2013] NZSC 6

[22] For example the provisions of the Auckland Region Draft District Plan allowing persons of Maori descent to object to the building of houses on land claimed to be of some significance to the objector.