PRISON BLOG 22
The Command Principle
When was the last time anyone in NZ resigned their office on a matter of principle, or refused an order because it was illegal, unconstitutional or unethical? I can think of public official whose jobs were terminated one way or another or golden parachuted to safety etc. but I can’t recall a resignation on principle. Surprisingly, counter-intuitively it’s the politicians themselves that display acts of principle: Tariana Turia quitting Labour the most recent example (Matt Rata before her).
The Judiciary are insulated in legislation and makes rulings contrary to the government’s position all the time without any overt personal moves against them. Oh sure, Cullen (the Attorney-General) can criticize their independence but nothing more than authoritarian rhetoric – at the moment).
There have been “whistle-blowers”, those who leak information, a vast array of incompetent, over-paid officials who have eventually been found to resign only after they have been afforded the dignity of an exit package and an unwarranted positive testimonial. Embarrassments like Judge Beattie (found “not guilty” while his co-accused judge pleaded guilty) can be shifted sideways to anonymous postings (Accident Compensation Appeals Authority in Beattie’s case), but someone speaking up at all, let alone being punished? I just can’t say I’ve heard of that, except at the relatively low-level like Corrections Dept. staff member Jossie Bullock or nurse Neil Pugmine who were dealt with by their employers for their going public on issues that alarmed them.
I raise the issue of the seemingly systematic timidity of public officials because of the petition I wrote to the Governor-General imploring her to refuse assent, or at least delay assent, to the Foreshore & Seabed Bill in 2004. She signed it while on holiday immediately after it was couriered to her before seeing the petitions. Now for her to have even delayed the signing would have been a constitutional crisis of sorts, but the circumstances certainly justified it. On lower order issues one would think the ability and justifications for stands on principle would occur far more often. Apparently not.
It could be argued that officials do what they can within the rules and their battles are unsung, but I’m not convinced. As the movie Judgment at Nuremburg illustrated even those Germans who were used as prosecution witnesses had often gone along with the Nazis to an unacceptable stage of active collaboration.
Nixon wanted to fire the special investigator delving into the Watergate affair and instructed his Attorney-General to do so. Because it was constitutionally improper he refused and Nixon sacked him. Within hours he brought in the new Attorney-General and asked the same of him – he also refused – and Nixon then instantly fired him. Then he finally found one who would fire the investigator. I fear that in the NZ system, that is to say the Westminster/Crown system, he would have been sacked first go with not even so much as an argument and probably scant media scrutiny too.
So I watch the current Prime Minister’[s criticism and that of the Attorney-General (he’s not a lawyer) of the Auditor-General with expectancy. He has had the temerity to publicly rebuke the ruling Labour Party’s fraudulent election spending. Not that he’s alone in this of course, they had had warnings from many electoral authorities over it before it happened. Under the aegis of the State Services Commission he is safe…for now.
I recall though the flip-side of the “whistle-blowers” – the government’s little helpers (why else would they – apart from ideology and partnership?). I’m thinking here specifically of the former Solicitor-General, Terence Arnold, the principle head-kicker for prosecuting Opposition M.P’s (and humiliated in front of the Supreme Court with the watery evidence against Ahmed Zaoui) who was earlier this year elevated to the Justice of the High Court and Appeal Court. What appears to the outside observer as Mugabesque political persecution has apparently been repaid with a judicial role. I’m particularly alarmed and not confident that Arnold is appropriate because my Appeal is set to go before that court in the near future. What will someone with an authoritarian track record make of sedition?
The close knit nature of NZ’s legal fraternity (or should that be sorority?) as well as the other elites poses crucial questions of independence and objectivity as no-one wants to damage their careers by upsetting the cozy arrangements. Indeed, combined with the rigid power structures and command oriented institutional history, I wonder if they could even identify what principles are worth having let alone be capable of defending them.
DON’T FORGET Tim’s Book and magazine collection for the Prison Library, please send your books and magazines to:
Hawkes Bay Prison
Private Bag 1600
Tim Selwyn (Editor of Tumeke!)
Hawkes Bay Prison
Currently appealing sedition conviction