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PC's Opinion: Lust Behind The Privy

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PC's Opinion
18 April, 2002
Lust Behind the Privy
By Peter Cresswell

For those who lust after power, frustration ensues at any barrier to the exercise of that power. From the U.S. to New Zealand, the reaction of the power-luster to his (or her) power being blunted is the same.

In the U.S., the biggest barrier to the exercise of supreme political power remains their constitution - and the man who first found a way around it was the moral cripple and four-term power-luster, President Franklin Delano Roosevelt.

Incensed that much of his New Deal legislation was being struck down by the U.S. Supreme Court on the (quite proper) grounds that most it was flagrantly unconstitutional, the autocratic Roosevelt came up with a plan to pack the Supreme Court with tame appointees who would roll over at his say so. Fortunately, even his close supporters blanched at this blatant power-lust, but in the end Roosevelt won anyway. He got around the constitutional barrier with the help of swarms of 'alphabet agencies' - a tactic he learned from Mussolini. Learning Roosevelt's ABC's meant discovering just what quangoes such as the AAA, BEW and CCC were up to, and most supreme court justices (let alone the public) could not keep up with their proliferation.

Alphabet agencies are still with us today, spewing out pages and pages of regulations - and all of it side-stepping constitutional barriers

It is said that those who forget the lessons of history are destined to see history repeated. It may also be said that citizens who forget how politicians usurp power are destined to see other politicians repeat the lesson. Here in New Zealand, Margaret Wilson has been learning from Franklin.

His court-packing plan didn't work, but Wilson's looks like it will.

Margaret Wilson plans to abandon the Privy Council as the highest court in the land and set up one of her own. Now, the Privy Council isn't just a medieval relic leftover from the dusty days when common law still protected people's rights (though it is that) it also gives New Zealanders who are eager for justice access to some of the world's best legal minds.

Further, having the Privy Council as our supreme court means there is a clear separation of powers between New Zealand's legislators and its supreme court - in this case 12,500km of ocean worth of separation! It is very difficult for even Margaret Wilson to influence Privy Council decisions from a hemisphere away, much though she may wish to.

But a court just next door packed with her own appointees! Presto ligio! Fabuloso! Significant constitutional barrier to power swiped away with nary a voice raised in dissent! Mussolini - and Roosevelt - would be proud of Margaret.

But surely, I hear you cry, Wilson-appointed judges wouldn't just be her tame poodles, rolling over whenever called to? Well, they don't have to. Despite being overrun with lawyers in shiny suits, the talent pool from which judges are chosen in New Zealand is remarkably small - everybody knows everybody else, and legislators and judiciary are often separated by no more than a restaurant table and a bottle of chardonnay.

Even as we speak we find that people who wrote legislation are now sitting in judgement on their own law - Joan Allin, for instance, who co-drafted the egregious Resource Management Act, now sits in judgement on her own legislation as the Principal Judge in the Environment Court. Former legislator-supreme Geoffrey Palmer was floated last year as the next Chairman of the Appeals Court - there to sit in judgement on the thousands of pages of legislation he himself wrote.

There is a reason for the separation of powers between legislature and judiciary - a separation enshrined in both the US Constitution and in those countries that enjoy a Westminster system: It is intended as a barrier to supreme autocratic power.

The barriers are becoming paper-thin.

© Libz.org 2001

This column may be reproduced anywhere, anytime, by anyone as long as it is reproduced in full, with attribution to libz.org, and that you let Peter know at organon@ihug.co.nz.


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