Headline this week:
Operation Cobalt: Police issue 15,000 traffic tickets to gang members
in disruption tactic. (1)
Issuing traffic infringements in Fendalton, Karori and
Remuera won’t reduce crime but definitely it will boost the coffers, for
denizens of these sectors do pay their fines, even if it’s only for doing 56
kph in a 50 kph zone.
However, issuing fines to gang members, which will never be paid and has little impact on bandits who ride their chariots irrespective of WOF, registration or legal ownership? Is this the solution to the crime wave?
In spite of these parodies of police perfection, in my
view, the current, out of control crime rate, lies not with police but
squarely at the feet of the Courts.
‘What the hell is going on?’ the reader asks?
Rapes several women and gets
home detention?
Kills driving while way over the
limit and while disqualified but does not go to jail?
Critically injures – for life
– someone who happened to be in the wrong place (walking home) when young hoods
wanted all the footpath? No jail even
though the offender has multiple convictions for similar behaviour?
Take the fellow last week in
South Auckland who approached the driver of a car which tail-ended his car in a
petrol station compound. In front of
CCTV and witnesses, the driver of the offending vehicle violently attacks the
family man who asked for name and address for an insurance claim.
While this assault is
happening, others from the offender’s vehicle, steal items from the victim’s
car.
Blatant contempt for the
law. Blatant disregard of CCTV and
witnesses. And most disturbing, clearly “no worries” about penalties when they
are caught.
No fear of any penalty from the Courts.
These crimes are a
demonstration of blatant disregard for penalties which Parliament enshrined
in our laws but which are rarely applied:
Assaults of serious level- 14
years jail.
Thefts – depends on the value
of the items – 12 months - 7 years.
Robbery i.e., theft with
violence 14 years.
Rape & sex crimes 14 years.
Drug crimes – a long time free
board at His Majesty’s Hotel.
These penalties suggest parliament considered them to be
“serious crimes.
In most cases, the police do locate, apprehend, and charge
offenders for serious crime who are eventually brought before the Courts. Problem is, the offenders are out in the
street before the court crier calls ‘All rise’ to signal the end of “Justice”,
for the day.
Don’t blame the fuzz.
The police to detect and apprehend bad guys.
It’s the Courts who allow offenders to walk with
penalties that are offensive to most Kiwis. For the most recent example?
The latest classic from the
Courts 22 Oct 2022: Victim-rejects-200-payment-from-man-who-escaped-conviction-for-her-indecent-assault. Judge reckoned identifying the villain would
wreck his job prospects – and in so doing denies a future employer of knowing
he/she just employed a potential sexual predator. (2)
But it doesn’t stop there. Common Law prevails?
The contribution of the Courts to the delivery of “justice”
becomes even more endangered when we review their penchant for creating “new
laws” aka “common law”.
When offenders i.e., perpetrators of serious crime, get off with “discounts”, because:
(a) they had a difficult childhood(b) have a Maori “cultural” report
Judges might argue that they are merely following orders
aka complying with instructions to do with soft sentencing – viz
sensible sentencing.
However, the option of judges claiming the “Nuremburg
defence” of “just following orders”, cannot be applied in New Zealand.
There are two main sources of law: statutes i.e., the laws
passed by our democratically elected representative Parliament and 'common law'
i.e., made by career bureaucrats aka Mandarins (3).
Common law has been developed by judges over the centuries,
and may be amended and developed by the courts to meet changing circumstances. However,
the democratically elected parliament remains supreme and may repeal, modify,
or develop the common law by statute.
This delivery of law is a manifestation of democracy. And,
this is where a case can be made that our Courts have overstepped the
boundaries with their banal interpretation of Maori myth and fables, as
having such credibility as to warrant consideration in the evolution of common
law, to guide the country.
The Ellis case, in my opinion, is a classic example
and contributes to the concern that our premier Court is on a crusade to
elevate the Courts above parliament.
[Stephen Franks impressive clinical debunking of the
Ellis case seems to arrive at a similar conclusion. (4)]
Several times I have addressed this Mission of the Judiciary
i.e., to replace our democratically parliament, as the source of all wisdom –
and law making.
For example, as far back as the reign of Rt Hon Helen
Clark, a contest was evident between the chief justice and the prime
minister. (5)
A critical point in time was
the focus on some 200 claims by Maori to ownership of the foreshore and seabed.
Rt Hon Helen Clark (for whom I have respect) made it clear to the then Chief
Justice Sian Elias (for whom I have no respect), following the latter’s
speculative commentary about the sanctity of Maori Customary law, that the
ultimate law-making body in New Zealand was its Sovereign Parliament.
The outcome of what appeared
to me to be a bit of a power play between both ladies, was that Prime Minister
Helen Clark’s Labour government in 2004 passed the Foreshore and Seabed Act
which deemed the title to be held by the Crown.
Helen Clark won that round and reasserted the right of
parliament to be the ultimate law-making authority in New Zealand.
Fast forward: In a critique of the Ellis case,
Stephen Franks says: (6);
“Our top court can use the
jargon, but if it understands rule of law principles it has decided they are
just too yesterday – indeed ‘colonial’.”
The judges admitted the
tikanga excursion was not needed for the case.
“They have reversed their
previous position, that dead people’s appeals die with them, on orthodox legal
principles. So tikanga adds nothing but undefined feels.
“They have taken these pages
and all this time to make a very deliberate claim to the right to make law that
Parliament has not made, and without any mandate from the people they now
intend to rule.
“Their sorry exhibition of
cultural appropriation is revolutionary. These are judges who want to be
kings.”
As I penned last week, Common Law does have its role in
the evolution of legal process, reflecting contemporaneous values of society in
the interpretations of statutory law but there is a limit and that is the
sovereignty of parliament as the ultimate power: (7)
This Latest Court decisions
suggest that the ultimate law maker in NZ, is a bunch of unelected bureaucrats
The problem with that outcome
is: New Zealand’s democratically elected parliament is the ultimate law maker
AND it cannot bind successor parliaments – which means that successors are also
the ultimate law maker in New Zealand during their time in the Hallowed Halls.
So, how did we get to the
situation where Courts are making the laws of New Zealand?
For the uninitiated, there are
two sorts of laws in New Zealand: Statutory Law – made by democratically
elected parliament and – collateral law being interpretations of statutory law
by the Courts which is called Common Law.
Common Law lasts as long as
Parliament decides that Court interpretations of Parliament i.e., Statutory
law, is out of kilter. Then Parliament
makes new Statutory laws.
Conclusions.
Blame not the police for the crime wave which has spread
like a tsunami under this Labour government of Rt Hon Jacinda Ardern.
Blame this labour government for failing to do what Rt
Hon Helen Clark did in 2004 when she asserted the omnipotence of parliament
as our law maker.
Question is? Do you
think Mr Luxon has what it takes to be as constitutionally astute as was
Helen Clark, to reinforce parliament as the supreme law-making power of New
Zealand and courageous enough to re-write new statutory laws to annul common
laws which now prevail in our courts?
References:
(3) https://breakingviewsnz.blogspot.com/2022/10/ross-meurant-mandarins-rule-politicians.html
(5) https://breakingviewsnz.blogspot.com/2022/09/ross-meurant-to-hold-pen-is-to-be-at-war.html
(7) https://breakingviewsnz.blogspot.com/2022/10/ross-meurant-fundamental-flaw.html
Ross Meurant, graduate in politics both at university and
as a Member of Parliament; formerly police inspector in charge of Auckland
spies & V.I.P. security; currently Honorary Consul for an African state,
Trustee and CEO of Russian owned commercial assets in New Zealand and has
international business interest.
2 comments:
Meanwhile special K davis (as he has clearly stated) continues to empty prisons by 25%.
Thank you very much Ross for all your research and plain speaking. This - I guess 'corruption' is too strong a word - maybe 'seduction' of the judiciary is my greatest anxiety. We can hopefully dismiss this government in a year (too long Oh Lord) but not the judges. I guess I have been naive in my faith in the law. I understand how te tiriti can still be subject to debate - although I think it is mischievous- but I have been shocked to learn of the latitude allowed the courts. I wonder if race is the only determinant.
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