Top Scoops

Book Reviews | Gordon Campbell | Scoop News | Wellington Scoop | Community Scoop | Search

 

Howard's End: Say Something, Be Something

When the courts deal, as ours do, with great public questions, the only protection against unwise decisions, and even judicial usurpation, is careful scrutiny of their actions and fearless comment upon it. Judicial and political criticism of the public and the media at Mark Middleton's sentencing is misguided. John Howard writes.

For centuries, judicial independence has been a foundation of law. But judges, or politicians, cannot, and should not, live in a vacuum.

Judical independence can only ever be institutional independence - unlimited terms and guaranteed pay - and be a means to an end.

What New Zealand judges and politicians seem to be saying now, is that judicial independence is an end in itself, insisting on independence from everything - particularly the will of the people.

If the foundation of our democracy is, "the democratic will of the people expressed in Parliament", what happens when that expressed will is ignored by politicians?

It is simply misguided for politicians to criticise public outrage over something which the politicians themselves have failed to do. It now seems that views or attitudes of the public that the politicians do not share cannot be legitimate, believing that public views are coming from some ulterior motive or secret agenda.

Moreover, too often of late, soliloquies in Parliament are spoken to an almost empty chamber. The House of Representatives Parliamentary system, in my view, is broke.

Mark Middleton broke the law, that's clear. But the public supported him out of a sense of frustration that even after a huge petition and referendum at the last election seeking tougher sentencing, political action did not seem forthcoming - until now.

But judges, in keeping with public sentiment, had already started to increase non-parole periods for certain types of offenders. The public outrage from the Mark Middleton case means the judiciary is at fault for not explaining that much earlier.

In Australia, top judges regularly appear on television and radio with commentary about their functions. I suggested that to former Chief Justice Sir Thomas Eichelbaum some years ago, but nothing was done. Is it surprising, then, that public confidence in our judiciary and the judicial system is arguably at an all-time low?

Judges have to call it as they see it. To use an old saying, if we are to be a nation of laws and not of men, then judges must be impartial referees who defend our constitutional principles from attempts by particular interests to overwhelm them in the name of expediency.

But New Zealand doesn't have a "We the People" written constitution with fixed meanings for guidance. We have an unwritten, evolving and fluid constitution and because of that, I predict we can expect more public activism over other concerns in our society.

The little known story of Dimitar Pesev shows both the power of self-deception and the explosive effect of telling the truth and the dangers inherent in allowing the rule of law and the truth to succumb to political movements of the moment.

Pesev was the vice-president of the Bulgarian Parliament during World War II. He was a civil-servant, doing his job as best he could, raising his family and struggling through a terrible moment in European history.

Bulgaria was pretty lucky, because it managed to stay out of the fighting, even though the Nazis had placed the Bulgarian government and the king, under enormous pressure to enter the war on the side of the Axis, or at a minimum to permit the destruction of the Bulgarian Jews.

The leaders of the time were unwilling to turn their citizens over to certain death but, like many other small European countries, Bulgaria moved toward the Holocaust in small steps.

Pesev was one of many Bulgarian officials who heard rumours of a new government policy and constantly queried his ministers. They lied to him, and for a time he believed their lies. But, in the final hours, a handful of citizens from Pesev's hometown raced to Sofia to tell him the truth - that Jews were being rounded up, that the trains were waiting.

According to the law such actions were illegal. So Pesev forced his way into the office of the interior minister, demanding to know the truth. The minister repeated the official line, but Pesev didn't believe him. He demanded that the minister place a telephone call to the local authorities and remind them of their legal obligations.

This brave act, against the power of the government, saved the lives of the Bulgarian Jews. Pesev then circulated a letter to all members of Parliament, condemning the violation of the law, and demanding the government ensure that no such thing take place ever again.

Pesev's words moved all those who until that moment had not imagined what could happen but who now could not accept what they had discovered. He had broken through the wall of self-deception and forced his colleagues to face the truth.

There is no monument to this brave man, quite the contrary. The ministers were embarrassed and made him pay the price for their wickedness. He was removed from the position of vice-president, publicly chastised for breaking ranks, and politically isolated. But he had won nevertheless.

The king henceforth found ways to stall the Nazis, the Bulgarian Orthodox Church publicly defended the country's Jews and even the most convinced antisemites in the Bulgarian government dared not advocate active cooperation with the Third Reich.

After the war, the Communists took over Bulgaria and rewrote history giving themselves credit for saving the Jews. Pesev was sent to a gulag and his story was only rediscovered after the collapse of the Soviet Union.

Were the actions of Pesev worth it? If Pesev wanted to be popular it was counterproductive to disagree with the government. If Pesev just wanted to tread water until the next holidays, it wasn't worth the agony. If Pesev just wanted to muddle through, it was not worth it.

So, to avoid criticism, say nothing, do nothing, be nothing.

© Scoop Media

 
 
 
Top Scoops Headlines

 


Dunne Speaks: Aspirations Are All Very Well, But It's Getting It Right That Counts
In a weekend television interview, the Prime Minister pushed back on a suggestion her government is far better at talking about things than achieving them. She countered that “I would not ever change the fact that we have always throughout been highly aspirational…what you’re asking me essentially is to shy away from aspiration”... More>>


Gilding The Cage Of Suburbia: Farewelling Neighbours
The statistics of Australia’s longest running drama series about sickeningly idyllic suburbia will interest soap show boffins. It lasted 5,955 episodes over 37 seasons, starting in 1985. Its anaemically thin plotlines, subpar acting, and emphasis on ideals bound to cause indigestion, did not prevent Neighbours from being mandatory viewing. Neighbours was, especially for British audiences, fetish and cult, shrine and devotion... More>>


Chaff Candidates: The Race For The UK Tory Leadership

As UK Prime Minister Boris Johnson set the scene in spectacular fashion. All who sought to confine him to history, perished. He was the only one who seemed to survive, and reject, one diabolical scandal after the next – till now... More>>


Binoy Kampmark: The Fuss About Monkeypox
The World Health Organization has been one of the easier bodies to abuse. For parochial types, populist moaners and critics of international institutions, the WHO bore the brunt of criticisms from Donald Trump to Jair Bolsonaro. Being a key institution in identifying public health risks, it took time assessing the threat posed by SARS-CoV-2 and its disease, COVID-19... More>>

Dunne Speaks: Time For MPs To Think For Themselves
One of the more frequently quoted statements of the Irish statesman and philosopher, Edmund Burke, was his observation that “Your representative owes you, not his industry only, but his judgement, and he betrays instead of serving you if he sacrifices it to your opinion.”... More>>



Keith Rankin: Latest Covid19 Death Demographics In New Zealand

This morning, on Morning Report (RNZ) Monash University epidemiologist Tony Blakely noted that Covid19 death rates in New Zealand are 20% higher in New Zealand than in Victoria, Australia. He also noted that facemask use is significantly more widespread in New Zealand... More>>