Wednesday 29 September 2010

Relative tyrannies

In response to the earthquake, New Zealand's Parliament has given Gerry Brownlee, the Earthquake Recovery Minister, power to suspend or modify just about any law in the country in order to facilitate earthquake recovery. The extraordinary powers were granted for expediency, as nobody in Parliament seemed to know what set of laws would need quick amendment to ensure reconstruction, but it's still a major grant of powers to the Executive from Parliament. Weren't there English civil wars about protecting Parliamentary privileges against incursion by the Executive?

So Brownlee has, as some have pointed out, the power to decree that nobody would be prosecuted for murder for shooting taggers. Of course, there's no way he'd do so. The most likely effect some would deem unwelcome would be perhaps too little consideration being given to heritage preservation when deciding whether to bowl over unsafe buildings and perhaps what will wind up being transfers to developers. That's not to say that the act wasn't entirely overkill; I agree with Andrew Geddis's open letter:
In particular:
  • Individual government ministers, through “Orders in Council”, may change virtually every part of NZ's statute book in order to achieve very broadly defined ends, thereby effectively handing to the executive branch Parliament's power to make law;
  • The legislation forbids courts from examining the reasons a minister has for thinking an Order in Council is needed, as well as the process followed in reaching that decision;
  • Orders in Council are deemed to have full legislative force, such that they prevail over any inconsistent parliamentary enactment;
  • Persons acting under the authority of an Order in Council have protection from legal liability, with no right to compensation should their actions cause harm to another person.
These matters are not simply "academic" or "theoretical" in nature. Over and over again history demonstrates that unconstrained power is subject to misuse, and that even well-intentioned measures can result in unintended consequences if there are not clear, formal measures of oversight applied to them.
I'd think it's not the likely particular immediate effects of this legislation that we need to worry most about; rather, it's the demonstrated non-existence of any constitutional spirit that could hold in check more serious applications of such powers down the road. The same failings of constitutional spirit that allowed abuses by Labour last time around are allowing abuses by National (with unanimous support from the opposition) this time, and may yield worse yet to come.

Meanwhile, in America:
not only does the President have the right to sentence Americans to death with no due process or charges of any kind, but his decisions as to who will be killed and why he wants them dead are “state secrets,” and thus no court may adjudicate their legality.
Obama is arguing the executive has the power to execute American citizens without a trial, without even so much as an airing of the charges against them, and that it can do so in complete secrecy, with no oversight from any court, and that the families of the executed have no legal recourse.

You can’t even make the weak argument that the executive at least has to claim this power in the course of protecting national security. Because it doesn’t matter. Obama is arguing that he has the right to keep everything about these executions secret—including the reasons they were ordered—merely by uttering the magic phrase “state secrets.” In other words, that this power would only arise under a national security context is deemed irrelevant by the fact that not only is Obama claiming the president’s word on what qualifies as “national security” is final, he’s claiming the power in such a way that there’s no audience to whom he would ever need to make that connection.
So where Brownlee has a whole lot of powers, most of which he'd never use and would vehemently deny any intention of using; Obama says "Yeah, I might want to order somebody killed, I can do that. Sorry if you don't like it; actually, I'm not even sorry if you don't like it. Deal with it. Oh, and I'm also wanting a back door into all your email and VOIP systems that'll make it easier for viruses to get in but will also let me eavesdrop. You'll have to deal with that too."

Relatively speaking, NZ still isn't looking that bad. So long as the US keeps getting worse faster than we do...

1 comment:

  1. Whats more: the "state secrets" clause in the US is strengthened by legal precedent from a case in which several (I think civilians) people were killed in a test flight of a military aircraft. The US government argued that releasing accident reports would release "state secrets" and so denied them to the crash widows. It turned out that the reports contained NO state secrets, but did contain information regarding negligence of the Air Force regarding the poor condition of the aircraft.

    Thus the state secrets clause first legal precedent is from a case in which the US government lied about non-existent state secrets - committing fraud to protect its own ass!