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Howard’s End: What About The Rule Of Law?

Everyone is entitled to the observance of the principles of natural justice. So says the NZ Bill of Rights Act 1990 - that's unless you are Dover Samuels or former Timberlands employee Kit Richards. John Howard writes.

There appears to be a disturbing trend emerging in New Zealand where one person, in this case the Prime Minister, can act as judge in her own cause - seemingly relying on the opinions of "the mob" to justify her actions.

What about the rule of law?

For hundreds of years, there has been an established principle that when acting in an adjudication role, a person must keep an open mind and comply with decency in adjudication.

There is also a well-established presumption that when Parliament delegates a power to anybody, that person(s) will act in accordance with the natural justice principles and with procedural fairness.

That the Prime Minister failed to wait for the results of the police investigation over the allegations against Mr Samuels before she acted is a disgrace.

That Ms Clark now says she took advice from people within Maoridom before making her decisions and, furthermore, sees that advice as good reason for her actions compounds the disgrace.

That the Prime Minister, just last week, pledged that Mr Samuels would be reinstated if the police found no basis to the allegations and that she knew of the allegations for about six months and failed to act, now smells of damage control, raw pragmatism and personal political survival.

It is unacceptable to now trot out other allegations against Mr Samuels which, if the Labour Party had done its homework on its candidates, would have most certainly known about.

No, this is a case of a Prime Minister bowing to the court of public opinion, the will of the mob and, I venture to say, a rat-pack media - all of which are hardly a stable way to run a country.

The rules of natural justice are not written in stone but there are some principles which have been handed down by the courts.

Natural justice is a concept which requires the observance of certain minimum standards and procedures in the conduct of a hearing, the breach of which may require a judicial review of the decision.

It seems to me the principles were best summed up by Lord Morris in the House of Lords Appeals Court in the case Furnell v Whangarei High Scools Board in 1973.

"Natural Justice is but fairness writ large and juridically. It has been described as fair play in action," he said.

Two major rules of natural justice were also noted by the Privy Council in the 1983 Erebus Royal Commission.

Briefly, the first rule is that a person making a finding in the exercise of an investigative function must base the decision upon evidence that has some logical probative value and is not self-contradictory.

The second rule is that a person hearing or investigating a matter must listen carefully, rationally and with an open mind, to anybody whose interests may be adversely affected and the person should not be kept in the dark about the risk of an adverse finding being made and deprived of an opportunity of presenting material which might change the investigators mind.

And then there is Chapter 29 of Magna Carta which is still part of New Zealand law after being enacted by our Parliament as recently as 1988.

In part, that chapter says no-one will be condemned or gone against but by the lawful judgment of their peers or by the law of the land. It also says that no-one will be denied justice or right.

It is the Parliament who makes the laws of this land - not the Prime Minister or the Government - neither is she or her Government above the law.

That Mr Samuels did not resign gracefully and had to be sacked perhaps means that he still feels aggrieved by the Prime Minister's actions.

He, and the public of New Zealand, was entitled to rely on the outcome of the independent police inquiry before he was sacked - that didn't happen.

The foundations of our democracy and the rule of law have been well and truly shaken - it is a trend I don't like.


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