THE ENABLING ACT, was passed by the Reichstag on 23 March 1933. With this single piece of legislation every act of the Reich Government – and its Chancellor, Adolf Hitler – was given the force of law. Any conscientious German lawyer, seeking to test the legality of the Nazis’ subsequent, democracy-crushing, edicts in Germany’s highest courts, would have been reassured that the “Rule of Law” remained inviolate.
Quite rightly did the nineteenth century British novelist, Charles Dickens, proclaim: “The law is an ass!” Laws do not rule – people do. This is the incontrovertible fact which Mr Andrew Borrowdale, the man who required the High Court to rule on his challenges to the legality of the Covid-19 Lockdown, singularly failed to grasp.
Not that Mr Borrowdale lacked encouragement for his Quixotic endeavour. All manner of pedants and purists were quick to figuratively pat him on the back for his services to the “Rule of Law”. As if the judgement of a few lawyers – albeit lawyers in flowing robes and horsehair wigs – should somehow be permitted to stand above the straightforward, self-protective judgements of ordinary men and women threatened by a global pandemic. As if the decisions made by the people’s elected representatives – for their protection – can be reasonably and responsibly struck down by a gaggle of job-for-life jurists elected by nobody at all.
Thank God the judges of the High Court turned out to be a great deal more intelligent than the individuals who put so much stock in Mr Borrowdale’s appeal. Andrew Geddes, a law professor at the University of Otago summed it up nicely:
“So it’s not that the Court got the decision wrong. Rather, it seems clear that the Court’s perception of its job, and the law at issue, was very much coloured by the same collective concerns that drove the government’s response to the virus. Preventing lots of people from dying from a disease is perhaps the government’s highest obligation, and the law has to be seen as enabling the government to carry out that task.”
Or, as the celebrated Roman statesman, Marcus Tullius Cicero (106-43 BCE) so succinctly put it: Salus populi suprema lex – The safety of the people shall be the highest law.
Obviously, preserving the people’s safety is, above all else, a political obligation – not least on the part of the people themselves. Consider the passage of the Enabling Act in 1933. Had the German Social Democrats and Communists not been at daggers drawn; had the German army not been so consumed by its desire to wipe out the humiliations of the Treaty of Versailles; then the farcical conditions in which the Enabling Act was passed (the German parliament was ringed with Nazi Stormtroopers, and the Communist Party MPs, having all been taken into “protective custody”, were absent from the Chamber) could not have arisen.
Thirteen years earlier, in 1920, an attempt by extreme German nationalists, backed by the army and right-wing paramilitaries, to overthrow the Weimar Republic had been foiled by the decisive action of the Social-Democratic Party-led government. Its call for all German workers and civil servants to come out in a nationwide general strike was backed by all the other parties of the German Left. Twelve million workers and civil servants responded. The country ground to a halt. It was the largest and most successful strike in Germany’s history. The so-called “Kapp Putsch” collapsed.
Three years after Kapp’s, in 1923, Adolf Hitler’s attempt to stage his own putsch (coup) was foiled by the Munich police. Formed up in a skirmish-line, the armed policemen ordered Hitler’s brownshirts to halt their march through the city. The Nazis (also armed) refused and came on. The Police commander gave the order to open fire. Those Nazis who still could (sixteen of them were killed) fled.
In both cases, the German judiciary had nothing useful to contribute. It was not the Rule of Law which saved the Weimar Republic in 1920 and 1923, but the German people themselves. Just as, in 1933, it was not the Rule of Law which transferred all effective executive power into the hands of a political psychopath. That was the work of a Depression-ravaged and politically exhausted German population – just enough of whom were ready to trade their liberty and decency for economic security and an end to the Weimar Republic’s intractable political divisions. As clear a case of “be careful what you wish for” as one could hope for.
In New Zealand, in 2020, the people have also prevailed. A leader they trusted, and who very clearly had their interests at heart, implored New Zealanders to unite against Covid-19 by staying home inside their bubbles. The New Zealand people responded by doing just that. Thus did Jacinda Ardern’s prioritisation of her fellow citizens’ welfare elevate her words to the status of suprema lex – the highest law.
Jacinda acted hard and early on our behalf, and we should all be exceedingly grateful that she refused to abdicate that responsibility to the courts. That the courts appear to agree is welcome proof that there are at least three judges left in New Zealand who still understand Latin.
A very timely piece .Thank you Chris.
“Jacinda acted hard and early on our behalf, and we should all be exceedingly grateful”.
I am extremely grateful Chris. They’ve helped keep my loved ones safe,fed and alive. They’ve also helped my business survive and staff on through turbulent uncharted waters. Generations to come will look back on this time and know Ms Ardern did so much more than just be the PM at the most challenging time for our country since WWII. History will judge how fortunate we were to have her when she was most needed.
I’m also equally grateful that the National Party were not at the wheel at this time. With their priority being on business at any and all cost, Kiwis would have lost loved ones to Covid in staggering numbers. To say we dodged a bullet there would be the understatement of the decade.
My biggest disappointment since Covid arrived has been the relentless attacking, ridiculing, blaming and undermining of Ardern every step of the way by the divisive National Party and a list of National Party media cheerleaders. They have been nauseating and an absolute disgrace to our country. I would very happily contribute financially to them all being permanently deported to Afghanistan.
“As if the judgement of a few lawyers – albeit lawyers in flowing robes and horsehair wigs – should somehow be permitted to stand above the straightforward, self-protective judgements of ordinary men and women threatened by …. communist revolutionaries / dirty and criminal immigrants / out of touch environmentalists / rabid feminists / violent repeat criminals / Treaty of Waitangi agitators…insert whatever group of people you don’t like.
The Rule of Law protects the most marginal groups.
Ada “The Rule of Law protects the most marginal groups.”
Precisely, and that is how it should be. However I am puzzled by your reference to rabid feminists, Aggie.
What are they ? Do we need to tell the children, or warn dear old grandad about them ? What do they do that two-way protection is warranted? Rabid like a dog?
Feels like the thin end of the wedge to me Chris.
The government is free to pass laws and the country should scrutinize them.
Picking and choosing which ones to follow is a dangerous precedent.
If the government had really cared about the nation’s health they could have done this when they originally got into power. It’s not as if Scientist and Medical professionals haven’t been warning about this for decades.
John the letter of the law and the intent of that law may vary, or a higher or more important consideration may need to prevail. That is where a judge is needed but the matter has to be referred to the courts. That is what they are there for but the courts can be a clumsy recourse often avoided.
I agree that preparation for a pandemic should have been in place years ago. PPE and masks stocked up, nurses trained and the health system properly funded and managed.
Sinking lids don’t allow that so what were sinking lids about. As you mentioned its been an issue for decades so which govt are you referring to.
When a referendum unequivocally reject selling off state assets, and the PM states he has a mandate to do so, and sells them, then the intention of the referendum is frustrated but no court action was attempted.
Clearly the public good was ignored, one of the higher tests of public will was invoked yet ignored.
Would have Labour or the COL got away with that.
Based on the case about the initial lock down being unlawful I would be interested to see how the Wallace whanau get on with how the law is interpreted and applied in their case. As Stephen Wallaces death and how he was killed when he was not an actual direct threat as the police had put themselves out of direct danger.
Charles Dickens did not “proclaim ‘the law is an ass'”. One of his characters, Mr Bumble, said that if the law says something or other – I don’t remember what exactly – then the law is an ass.
Interesting stuff,… however there is , running through humanity a certain self centeredness, which is not necessarily a bad thing as we are all individuals,- even the animals think of their own immediate survival, but like humans, – come together in consensus against the common threat. A lioness with her cubs protecting against hyenas, a herd of cape buffalo forming a circle around their calves as the lion pride stalks them…
It is interesting that it is ‘ Laws Do Not Rule – People Do ‘. Well, that’s the principle anyways. Take for instance a far more simpler structure than a state,… a Native American plains dwelling tribe ( nation ) we all know: the Sioux.
Like almost all Native American cultures and nations, their political hierarchy was quite fluid. Within the bounds of accepted social customs and ‘laws’ governing behavior. But it was also volatile and fractured in alliances and opinions. Initially under chief Red Cloud, the warriors were united in opposing the western movement, attacking settlers, army forts, and tearing up railway lines. Several decades later, the constant social and economic stress caused by a relentless foe caused Red Cloud to reconsider future generations and the elderly , ultimately culminating with Red Clouds decision to become a ‘reservation Indian’.
And for that he was mocked by other chiefs such as Sitting Bull , Crazy Horse among others… they flat out refused to accede to the demands of the US government and to become ‘tamed’. Under Sitting Bulls leadership they went on to destroy over 200 of George Armstrong Custer’s men including Custer himself,… and the rest is history. The fugitive leaders surrendered one by one with Crazy Horse being killed after a day or so after he led his people onto the reservation.
Red Clouds ‘res Indians’ survived but those who did not comply suffered horribly.
Fast forward to the late 1970’s and 1980’s and there evolved a tribal government and in particular a leader who along with his selected thugs, embezzled and murdered many of his fellow tribes people, and on top of all that , there was the armed Pine Ridge siege which went on for a considerable time , conducted by state police and various Sioux factions with vested interests in enforcing their will ,- again , – on their fellow tribes people.
I find it interesting that even among this relatively small band of people (by world standards today ), with their intact culture spanning century’s, in adapting successfully to life on the plains after coming from the woodlands after they procured the horse, their traditions and values and customs, were so rapidly torn apart by an era of crisis caused by a common foe and changing conditions which devolved quite rapidly into a breakdown of their political decision making process and into partisanship. Both in the historic era and the modern.
I think the tribal leadership suffered from this example :
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Just as, in 1933, it was not the Rule of Law which transferred all effective executive power into the hands of a political psychopath. That was the work of a Depression-ravaged and politically exhausted German population – just enough of whom were ready to trade their liberty and decency for economic security and an end to the Weimar Republic’s intractable political divisions. As clear a case of “be careful what you wish for” as one could hope for
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With similar genocidal outcomes in the historic and modern era. Except of course, it could be said that different chiefs operated from different perspectives to preserve their peoples way of life… which was different from the corrupt tribal leader of the 1970’s and 1980’s.
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In New Zealand, in 2020, the people have also prevailed. A leader they trusted, and who very clearly had their interests at heart, implored New Zealanders to unite against Covid-19 by staying home inside their bubbles. The New Zealand people responded by doing just that. Thus did Jacinda Ardern’s prioritisation of her fellow citizens’ welfare elevate her words to the status of suprema lex – the highest law
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Well, both chief Red Cloud and Sitting Bull claimed to have their peoples best interests at heart, with Red Clouds people submitting and eking out a miserable starvation existence on the reservation, and Sitting Bulls people and the other nations accompanying them being hunted down relentlessly like dogs. And their people trusted their leaders too.
I guess that just goes to show that there is no ‘group think’, there is no generalizations of people groups to be made, that people are individuals that band together in the face of a common foe – and just as quickly disband and reconsider with looming defeat. Which brings me to my point: this ‘enabling of the law by the consensus of the people and only by the people’ can quickly break down in the face of defeat creating factions, intrigues and the rise of dictatorial leaders if enough pressure is applied for enough time.
So we’ve had the first ‘relentless foe’ , – covid 19. The second ‘relentless foe ‘ will most likely be economic. What I wonder, is how well New Zealand’s people will hold up if enough constant downwards pressure is placed upon our society for enough time,…and would we really fare that much better than the chiefs and peoples of the Lakota Sioux of the 19th century? ( spiritually, economically and socially? ). If not, just what are we going to be doing about it ?
As mentioned by some for example , we STILL have family’s sleeping/ living in cars as we speak… similar to many who are living on the reservation’s in the USA today…
And that was after the Sioux were decimated by disease
That happened earlier on with smallpox etc. But was an ongoing problem admittedly, – but for both sides of the equation.
Well said, only thing I’d add is to keep Mr Borrowdale away from any position of power. As his inability to get beyound his own ideological shitfuckery is frightening.
Jacinda has been successful, so far. The saga has not reached half time, with the full time whistle yet to be determined, if ever. So, ease up on the kudos. The virus is one issue, how has the Government done on delivering in other core areas?
READ, THE WORK I DID. Semi, auto bi-ography of a centurion aged speed shorthand writer for Goebbels propaganda machine the Ministry on the Williamstrassa.
Behave, that wis the name of the street where the building was. It!s not a long read easy really compared to others. Age memory and stuff is known to the reader of the book as pointed by the helping biographer about age memories and.
Understanding the hypoc youth born into semi wealth, gone why those French English got us on this poverty coupon place, with our war pay back, of course only castles crowns wealth exploit of our humanity, and youth.
The people rule? Really? Are we ruling now? Once every three years, perhaps. So the 1956 Health Act for example is secondary to what “the people” say? The people ruled during the French Revolution too, while the common law was already there in England so that they didn’t have to go through the same awful thing. The article only looks at one side of the matter.
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