Friday 8 May 2020

The Safety Of The People Shall Be The Highest Law.

Salus populi suprema lex
The safety of the people shall be the highest law.
- Marcus Tullius Cicero (106-43 BC) Roman Jurist and Statesman

SIMON BRIDGES and his supporters (witting and unwitting) aren’t quite chanting “Lock her up!” Not yet anyway. But they’re headed in that general direction. Faced with a prime ministerial performance that the rest of the world, and most of her own compatriots, have judged to be outstanding, the Right, in desperation, is attempting to criminalise Jacinda Ardern’s “Go Early – Go Hard” strategy against the Covid-19 Pandemic. Shown the way by a couple of liberal professors, Bridges and his media allies are now demanding to know the legal basis for locking down New Zealand. If the Cabinet’s decision, made in haste under extreme conditions, is deemed to be ultra vires (beyond its powers) the way will be opened to endless and politically vexatious litigation.

What these legal purists and panic-stricken politicians do not appear to understand is that if it is the people who are ultimately the fount of all legal authority, then those same people must also possess the power, in extremis, and in the interests of keeping themselves and their loved ones safe, to elevate that existential imperative above all other legal and juridical considerations. With an election looming, any political party foolish enough to attempt to punish Jacinda Ardern and her team for keeping New Zealanders safe will be punished severely at the ballot box. And, if the people are not the ultimate source of all legal authority, well then, who is? Law professors? Lobbyists? The National Party!

The declaration of a State of Emergency is, by its very nature, an exceptional occurrence. Among the most extreme of all the powers wielded by executive authority, it is reserved for those moments when the normal appurtenances of state power are no longer deemed sufficient to maintain public safety. That only those constitutionally sanctioned to do so can declare a State of Emergency is less important than whether or not the persons so empowered believe that such a declaration will be effective. The declaration of a State of Emergency which does not enjoy broad popular support is, in effect, a declaration of war by the state upon its own citizens. Or, to put it another way: the safety of the people can only be maintained by exceptional legal means if the people themselves feel sufficiently threatened to abandon legal norms.

But who, in these situations, falls within the definition of “the people”? Clearly, not everyone can be included if the threat is located within the borders of the state. A nation under foreign attack; responding to a natural disaster; or facing down a global pandemic; will have no difficulty in accepting emergency regulations. Declaring a State of Emergency in the context of a political and/or economic challenge to the smooth functioning of society, however, is a much riskier proposition. Interfering with the free movement of individuals and/or the free disposition of their property in such circumstances can only be made effective by excluding the challenger/s from the usual definition of “the people”. For emergency measures to succeed, such individuals or groups they must first be transformed into “the enemy within”.

This what happened during the last great extended State of Emergency in New Zealand history: the 1951 Waterfront Dispute. The National Party Prime Minister of the day, Sid Holland and his uncompromising Minister of Labour, William “Big Bill” Sullivan, were able to brand the Waterside Workers Union “wreckers” and curtail their rights because the dispute arose in a context that made the demonization of the watersiders and their allies considerably easier than it would have been at just about any other time.

The Cold War had just turned “hot” in Korea. The militant trade unions had walked out of the Federation of Labour and viciously attacked its leaders: a situation which played into the hands of the FOL’s Machiavellian “boss”, Fintain Patrick Walsh. Between 1946 and 1949, the Labour Party, itself, had quite deliberately isolated, vilified and, in at least one instance, deregistered, militant, communist-led trade unions. This vilification, especially of the Waterside Workers Union, had continued on the pages of the country’s newspapers (most effectively through Gordon Minhinnick’s cartoons in The NZ Herald). Holland and Sullivan could, therefore, rely upon Walsh, the FOL and the daily press to back any attack on the WWU. They could also, crucially, be relatively confident that the Labour Party would remain neutral in the ensuing industrial war.

Because it controlled one of the economy’s crucial choke-points, the wharfies’ union had always been vulnerable to a government determined to destroy its power. Any lengthy period of industrial action could be successfully portrayed as constituting a clear and present danger, not only to the country’s exporters and importers, but to the whole community. This was due to the fact that in the 1950s vast quantities of everyday items were still distributed around the country by ship. Holland was able to argue that shutting down New Zealand’s ports constituted a very real threat to the public safety. As a consequence, his invocation of the draconian Public Safety Conservation Act (1932) was held to be justifiable.

It was enough – just – for the majority of New Zealanders to accept the National Government’s comprehensive restriction of their civil liberties, and the harsh persecution of their fellow citizens, that Holland’s quasi-fascist Emergency Regulations permitted. Had the Korean War not been raging; had the FOL not been split; had Labour been less hostile to the trade union left; and had the public been less vulnerable to a protracted shut-down of New Zealand’s ports; then the National Government probably wouldn’t have risked declaring a State of Emergency. But, with all these factors working in its favour, and with its decisive victory in the Snap Election which Holland called to secure the electorate’s ex post facto endorsement of his treatment of the watersiders, the National Party was given ample proof that, for most Kiwis, the famous maxim of the Roman statesman, Cicero: Salus populi suprema lex; the safety of the people shall be the highest law; was indisputable

In the light of New Zealanders’ conscientious adherence to the “Unite Against Covid-19” rules, Cicero’s maxim continues to meet with their approval. Kiwi acceptance of draconian emergency measures cannot be guaranteed, however, in the absence of two crucial provisos: 1) An overwhelming majority of the people must believe that the threat to their safety is real. 2) They must also be convinced that only the imposition of extreme measures will avert a national catastrophe.

Neither of these provisos applied to the political crisis confronting New Zealand in 1981. Invoking the provisions of the Public Safety Conservation Act was a move the Rob Muldoon-led National Government was unwilling to make in relation to that year’s highly controversial Springbok Tour. It knew that there was insufficient support across the whole country for hard-line emergency measures to be enforced without the use of deadly force. Such was the temper of the country in 1981 that the killing of protesters by police or soldiers would only have made the disorder on the nation’s streets ten times worse.

New Zealand history thus confirms that its people are, indeed, the best judges of their own political security, and will make an exception to the rule of law only when they believe their own and their loved ones’ safety is genuinely imperilled.

The Jacinda Ardern-led Coalition Government is the first since 1951 which, confronted with a clear and present danger to the public’s safety, has felt confident enough of their broad support to promulgate and enforce a stringent emergency regime of indefinite duration. The New Zealand people’s subsequent willingness to “Unite Against Covid-19” constitutes a ringing endorsement of both the Ardern-led Government and Cicero’s militant-democratic slogan.

As their own constitutional guardians, the people are uniquely positioned to recognise those (thankfully rare) moments when the only effective means of keeping themselves safe is by allowing their leaders to operate (temporarily) outside the black letters of the law. And woe betide anyone who tries to stop them!

This essay was originally posted on The Daily Blog of Friday, 8 May 2020.


Odysseus said...

We did not "go hard, go early". That is a big lie. WHO declared a Public Health Emergency of International Concern on 30 January. We suddenly went into full lockdown on 26 March, nearly 2 months later, after public figures like Sir Peter Gluckman and Sir Stephen Tindall urged the government to act in the face of the COVID 19 threat. Just over a week prior Ardern had been planning to appear before an indoor gathering of five thousand in Christchurch, including overseas visitors. We did not effectively seal our borders with full quarantine procedures until mid-April. Repeating the big lie incessantly doesn't make it true.

Cicero is a hero of mine and he would have argued vigorously that every government must obey the law. He was a staunch defender of the Roman Republic for which he gave his life. It now appears from a leak yesterday that the government and the Police may have been aware that potentially controversial aspects of the lockdown were likely to be unlawful but they knowingly went ahead anyway instead of seeking additional, necessary powers from Parliament. If so, that would be a step towards arbitrary rule and a Police State. No matter what the circumstances, that would be indefensible.

Anonymous said...

But why didnt they just pass a law beforehand? They had heaps of time, so were they lazy or inept, or reckless or full of hubris or all the above? We know they were all the above except hubris on testing, quarantine and contact tracing

Kat said...

Andrew Geddis, one of the "Law professors" who has commented publicly on the legality of the lockdown, has now publicly advised Simon Bridges and the National party to "back off". Lets be clear here Simon Bridges is living up to his own wife's public description of him as a "dirty little street fighter". I rate him no better than a cheap talking thug who appears to want to be a Trump mimic. The outcome of the election in September should show the extent of public support for Simon Bridges type of dirty politics. I would imagine a number of National MPs must already be feeling like turkeys at Christmas time.

Simon Cohen said...

Kat for once in your life stop parroting the party line and address the questions that Odysseus posed.But you won't because you can't.

Unknown said...

Trump may pardon Simon on Thanksgiving day

Unknown said...

Only 1 country was completely prepared.
Taiwan. Picking apart our response is just trying to score cheap political points.desperation .

Max Ritchie said...

Let’s be clear here - this is not a matter of Bridges vs Ardern - that will come later, at the moment scheduled for September. The issue here is whether or not the government was acting lawfully. It appears not and it also appears that the solution was not too difficult: pass a law (which all NZ governments do, all the time).

Anonymous said...

I was appalled at the personal attack which Simon Bridges inflicted upon
Ashley Bloomfield during the Pandemic meeting( via zoom) at Parliament on Wednesday 6 May. He lost. my vote and the vote of many other
National Pary supporters. He showed himself in his true colours.

Anonymous said...

There is a published letter out in the Lancet by an Swedish epidemiology Professor which indicates that all New Zealand's lockdown efforts will be in vain. To quote "These facts have led me to the following conclusions. Everyone will be exposed to severe acute respiratory syndrome coronavirus 2, and most people will become infected. COVID-19 is spreading like wildfire in all countries, but we do not see it—it almost always spreads from younger people with no or weak symptoms to other people who will also have mild symptoms. This is the real pandemic, but it goes on beneath the surface, and is probably at its peak now in many European countries. There is very little we can do to prevent this spread: a lockdown might delay severe cases for a while, but once restrictions are eased, cases will reappear. I expect that when we count the number of deaths from COVID-19 in each country in 1 year from now, the figures will be similar, regardless of measures taken.
Measures to flatten the curve might have an effect, but a lockdown only pushes the severe cases into the future —it will not prevent them. Admittedly, countries have managed to slow down spread so as not to overburden health-care systems, and, yes, effective drugs that save lives might soon be developed, but this pandemic is swift, and those drugs have to be developed, tested, and marketed quickly. Much hope is put in vaccines, but they will take time, and with the unclear protective immunological response to infection, it is not certain that vaccines will be very effective.
In summary, COVID-19 is a disease that is highly infectious and spreads rapidly through society. It is often quite symptomless and might pass unnoticed, but it also causes severe disease, and even death, in a proportion of the population, and our most important task is not to stop spread, which is all but futile, but to concentrate on giving the unfortunate victims optimal care."
Even Michael Ryan of the WHO supports the Swedish stance. If even part of this is true, then the there will be a tremendous cost to the economy and very few lives will have been "saved"
Chris Morris

Aletheia said...

After having done rather little to ensure the safety of the people in January and February, the government saw the footage coming out of northern Italy in mid March and read the Imperial College report. It panicked, throwing common sense - and maybe legality it now seems- to the wind. The lockdown is a monument not to good government but to hysteria.

greywarbler said...

You have a mind with high principles as espoused over past histories.
Since Cicero pronounced many, many things have happened. And many things could and should have happened, but none for the first time. I think I paraphrase Sir Humphrey correctly.

We were slow to react. The government has been in careful rabbit mode, scuttling away quickly to their hidey holes when aware of difficulties that might cost them votes. But rabbits have claws and teeth and when necessary can use them. PM Jacinda's teeth are happily visible, strong and white and fresh and ready looking. She has shown us an ability to stick to an initiative with value. Once it was shown to be necessary to act she did. The laws must be kept in mind, but this was a huge exception, making necessary direct emergency powers 'without' the sort of delaying tactics that a reactionary, self-serving National Party political coterie would be sure to bring up pleading probity.

The Labour Coalition government are to be praised for that, and now have to carefully unwind our Levels and ask the citizens with a brain and maturity to be wary and keep to the guidelines. We will just have to keep our eyes open for the ones who were suffering before Covid-19, to see that they don't rebound in the well-known youthful belief in divine protection. If they can find pleasure and ready food sustenance at KFC and elsewhere, thank goodness that they can enjoy that sanely. It is enough to drive the precariat demented having this disease further their descent into vulnerability to extreme poverty, in the land of plenty.

Anonymous said...

Chris - it is very hard to convince people that the Prime Minister's actions are good, when there was a document dump on Friday afternoon and a gagging order put on all the Ministers. Not the actions of a open and transparent government or a kind PM. Judge people by their actions, not their words.
Chris Morris

Prufrock said...

Don't forget that Cicero also oversaw the execution of Roman citizens without trial during a state of emergency (Senatus Consultum Ultimum) and was lauded father of his country for the act. Then he himself was proscribed and legally murdered by Octavian, Lepidus and Antony. So be careful using Cicero as an example - it may not quite end up where you want it to!

Patricia said...

To all those naysayers. Hindsight is a wonderful thing. In fact it is 2020 Vision. Pun intended! The real test will be what the Governments response is to the coming economic crash. If has the power to do a lot but that will depend on whether they are blindsided by the belief in neoliberal economics that has ruled us since the 1980s

Kat said...

The govt was not slow to react, quite the opposite. The govt however did react as soon as possible given the circumstances, all the available data and projected health outcomes. If you think the govt should have acted earlier please provide or point us in the direction of the qualified information you have to back that up.

@Simon Cohen
Still throwing darts, young man, about time you upped your game. On the other hand perhaps you do need a few more years with Tiddly Winks. And with regards addressing questions we are still waiting on your reply from my questions on post 10 April 2020 at 18:04. Go on, lets see if you can.

Guerilla Surgeon said...

Some people are obviously spending their lockdown time productively. Which I might do if anyone could stand the sound of my singing voice.

But there is this chorus. All those conservatives saying that the National party would have done it better – without the slightest bit of evidence. And yet business, to whom National is beholden, are constantly pushing for the end of the lockdown. Does anyone seriously believe that they wouldn't have pushed for a delay in the lockdown if National had been in power? Seems to be typical of New Zealanders – maybe of people in general these days – that everything has to be politicised, no matter what the other side does nothing is ever good enough.

greywarbler said...

I think the government did react as quickly as they could, as you say. They took advice from WHO and others and did the right things. But they were slowed by the hostile right wing that are negative to everything they do. It will always range itself against Labour with criticism from persiflage to derision, through to legal challenges.

This is the problem with our present political system where National considers its own desires as primary, and the needs of the people secondary. They do not care about the citizens, anything positive they do is to gain votes in that electorat, or follow plans made with wealthy lobbyists, or gain a positive image with those who consider themselves 'wealth creators'.

Prufrock - Do you think that politicians need to remember that song 'I never promised you a rose garden'?

Anonymous - Chris - it is very hard to convince people that the Prime Minister's actions are good, when there was a document dump on Friday afternoon and a gagging order put on all the Ministers. Not the actions of a open and transparent government or a kind PM. Judge people by their actions, not their words. Chris Morris

You nit-picking hound. The rightness of the PMs kind actions was to stop the entry through our borders of all the carriers from the world, so we would not die in large numbers - and they would not have all been older people either. A number of people don't like it that the PM and Cabinet undertook executive action to serve the people. You don't like that as it shows that business and financial interests haven't managed to crush the will of some in government to act in the whole country's interests and not your superior, disinterested, theoretical ideas or your back pockets, or both.

Anonymous said...

Grey warbler, I am still trying to work out whether you should have put a sarc tag on your post or not. However, I will you are a true believer.
There is a very interesting post by Michael Riddell at that shows we might have gone very hard, but we did not go early. You can also see that Australia was nowhere near as hard as us, yet their case rate and death rate is slightly better. So the Prime Minister's actions of going late but very hard did not save a lot of people. It probably saved no more than if we did the same as Australia. And we still have to cope with the fact that there is no vaccine and will not be for the foreseeable future, so all we have done is delay the deaths of people who have significant co-morbidities and will catch it in the next wave. There is one definite though. The deep and lockdown will have made a lot more unemployed than Australia's did. And that in itself will increase the death rate in the under 65s.
Chris Morris

Kat said...

@greywarbler 15:19
Thanks for the reply, my comments really should have been addressed to Odysseus. Disparaging comments about the govt and how it acted all made without providing any evidence other than 'reckons'. The present govt is not perfect, none are, but the alternative for New Zealand at this time doesn't bear thinking about.

David Stone said...

It is interesting to watch how the political opposition and public naysayers have delayed their criticism of the government's actions to protect the country from the potentially devastating effects of this new virus of unknown and rapidly changing lethality until after it has become apparent that the action has been successful . Had it not been successful the criticism would have been about inaction or insufficiently stringent rules being applied. So support and co-operation was the strategy until it was safe to chose what angle of attack would suit the outcome.
Now the political / moral capital has become so unequally balanced that desperation is setting in. How to regain some traction in this one sided popularity contest.? Every improvement is making matters worse.

Brewerstroupe said...

The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.

H.L. Mencken

David George said...

Chris, weren't you railing against the UK government executive attempts to bend the rules around the implementation of the democratically endorsed brexit legislation?

The government breach of legal niceties/legitimacy won't be a significant deterrent for most come election time. I suspect many are not even aware that governments have fairly strict, long established protocols; they think they can do pretty much what they like.
If there is widespread civil legal action against the illegal arrest of citizens and forced closure of business that might change.
There is far more concern about the tacit support for the mobsters and ethno-nationalists blocking our roads.

Widespread concern or strong distaste also for the reported directives from the PM to news media about their content. And now this, the recent directive to MPs to not bother talking to the media; that the people love us so don't bother trying to explain.
Adding it all up: wilful blindness, arrogance and a contempt for the law and for the people of New Zealand. Probably best to hold fire at this time but plenty of ammunition for the opposition there.

If I know anything about my fellow citizens it's that they will find all of that pretty disgusting; regardless of the justification.
David George.

petes new write said...

The people gave the coalition govt the power to act in any emergency back in 2017. They would have to answer that at the next elections, if necessary.

Anonymous said...

I'm pretty happy the 3 party coalition govt is doing a good job so far... I feel the opposition would have done similar & I would have been happy about that too... so I don't know what all the fuss is about... almost all of us support the approach taken... I believe Aotearoa/New Zealand is one of the greatest little countries to be living in & we all should be grateful we're part of it (my 10c worth... & I give change) :)

greywarbler said...

kiwidave why do you bother about what the government is saying - trying to explian - when your mind is made up in the negative anyway. So many commenters want to claim the right to have done the sensible thsing after the emergency - which before no-one could have stated the outcome confidently. This is not a horse race, it is our lives and our services, and I don't agree to it being a practice run on Darwin's survival of the fittest either; [the Ayn Rand version].

David George said...

Greywarbler; it's not about me.
My post was about the voting public's perceptions of the present government rather than my own thoughts, the horse race is in September.

Geoff Fischer said...

"No more than 10 people at gatherings (to be reviewed 25 May), except funerals and tangihanga, which can have a maximum of 50 people if registered with Ministry of Health."
"Event facilities, including cinemas, stadiums, concert venues and casinos have a limit of 100 customers in each workplace at any time, with 1 metre physical distancing and record keeping."

So more than 10 people at "gatherings" of members of family, religious or political groups are an unacceptable risk to public health, but ten times that number are fine so long as they are paying customers gambling away Mum's grocery money, watching soft porn movies or engaged in other such supposedly edifying activities.

"Level 2" is about restoring profits and suppressing political dissent.
Not clear what it may have to do with public health.