Friday, 28 August 2009

Disregarding the rule of law

Since 1961 until recently the law in New Zealand stated that parents could use physical discipline for the purpose of correction but it was illegal to assault a child. The law was both intrinsically reasonable, clear in its intent, and effective in court. In 2007 the law was modified at the behest of a politician who has a philosophical opposition to the use of corporal punishment.

There was significant citizen opposition to changing the law at the time.

The new law is regarded a shambles. Persons on both sides of the debate have variably stated that it allows and forbids smacking children. Some have even claimed that it forbids using non-physical discipline on a child. And legal scholars have stated that the wording is a mess.
This is not clear legislation. In creating this law, Parliament abandoned its constitutional responsibility to say with clarity just which conduct is criminal.
Here is the wording of the law.

In response to the new law there was a referendum to which the vast majority (88%) of New Zealanders (who responded) voted that: A smack as part of good parental correction should not be a criminal offence.

The current government claimed to oppose the law when it was enacted 2 years ago. They were not in power at the time. Their response to the recent referendum is to say that the current law is working and there is no need to change it. They have also suggested that they will reinforce to the police not to prosecute minor infractions of the law.

I am not certain one can say the law is working when over 200 people have been investigated by the police for smacking since the law came into place (~2 years). And it hasn't prevented 15 children from being murdered. (The population of the country is 4 million.)

Telling the populace that the police will not prosecute them even though the law states their behaviour is criminal is a request from the state for us to trust them. But a request for trust can only be made by someone that has proven themselves trustworthy. The refusal to change the law despite saying that they didn't like the original law, despite the fact that the vast majority of New Zealanders want it changed, and despite the fact they are asking the police to disregard the law; proves they are not worthy of the trust they are asking for.

However the major problem here is not about parents being able to physically discipline their children for corrective purposes, as important as that is. What is incredibly pernicious is the idea that actions should be criminalised while the investigators of such actions are told to ignore these actions. Such thinking is stunningly foolish for any person, and malevolent for a politician. It utterly disregards the rule of law. It resembles the monarchy of a vacillating king; where men are praised or condemned at his whim.

The government needs to decide what behaviour they consider criminal and make the law clear. Unclear law where people are uncertain whether or not their behaviour breaks the law, and law that criminalises people but denies it will prosecute them (most of the time), are both unacceptable.

Some may claim that the police often use their discretion in prosecuting crime. This is true. There are several reasons why this may be the case.
  • A crime is identified but there is insignificant evidence against the perpetrator.
  • The criminal has committed several crimes and the police want to concentrate initially on the most severe.
  • Delay is being used to identify further perpetrators.
  • Police lack staff to adequately investigate all crimes so choose to focus on what they consider the most important.
The difference in the above examples are that decisions are being made based on what is possible, or practical. It is not the choice to deliberately ignore criminal behaviour.

This kind of approach to law could eventually lead to all citizens being guilty of criminal behaviour and the state arbitrarily prosecuting individuals it finds inconvenient.


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