Key Government overturning Supreme Court, and principles of good law [update 2]

The Key Government seems to have learned nothing from the many mistakes of the Clark Government.  Instead of avoiding them, it is repeating them. Virtually all of them.

Perhaps the two highest profile judicial mistakes of the Clark Government’s last term, with the biggest consequence for the Government itself, was (first) its overturning of the Appeal Court’s decision allowing iwi to take cases in common law arguing for their ownership of specific parts of foreshore and seabed, and (second) its passing of retrospective legislation covering its arse over the pledge card.

The Clark Government’s first intervention didn’t just overturn the judiciaries’ independence, one of the bulwarks of Objective Law, it politicised a decision that would have been far better taken through the courts in common law—without all the screaming and shouting, and the resignations of ministers and formation of new parties. (Wooh, talk about unintended consequences!)

Its second intervention, passing retrospective legislation to protect itself from the consequences of its own law-breaking, overturned yet another bulwark of Objective Law: the principle that, to be objective, law must be known in advance.

In every regard, the law must be adapted to its essential goal: predictability. "[M]en must know clearly, and in advance of taking an action, what the law forbids them to do (and why), what constitutes a crime and what penalty they will incur if they commit it."

A bad habit of changing law retrospectively, just because it doesn’t suit the government, is hardly the mark of good predictable law.

But does this National-led Government learn? No way. It’s just announced it plans to pass law overturning the Supreme Court decision disallowing the Supreme Court’s decision in the case of the police surveillance of the Urerewa 18 17 15 4.  At a stroke, overturning virtually all the principles of good Objective Law–and all because the government wrote bad law in the first place.

Maori Party MP Te Ururoa Flavell is absolutely right.

"It appears that what the National Government will ask us to do, is to suspend the law temporarily - to condone the unlawful act by the Police; and then to add fuel to the fire by introducing legislation to make the 'unlawful' lawful. What sort of justice system do we have if the upholder of the law is allowed to break the law and get away with it?”

Fair question? It’s certainly not one that’s worthy of respect.

UPDATE 1: Speaking of Objective Law  and the separate arms of government being independent, I just heard the Prime Minister tell Leighton Smith “I’m not going to allow these people to walk free.” With the clear implication he will change whatever law  is necessary to do that.

There was a time in  history when the superiority was realised of “a government of laws, not men.” Feel free to write whatever opinion you like about whether this still exists.

UPDATE 2: Dim Post on John Boy’s Bureaucratic Capture:

“John Key isn’t an intellectual … [which]  makes him vulnerable to mistakes like this decision to retrospectively validate illegal activity undertaken by the New Zealand police. The bureaucrats embarrassed by the Supreme Court’s finding that the police acted illegally can argue that it would be awfully practical and convenient for the state to pass legislation dumping the Supreme Court’s interpretation of the law, and the Prime Minister doesn’t have the intellectual clarity to say, ‘Hold on a minute. That violates almost every principle my own party is supposed to stand for!’”