Howard's End: Say Something, Be Something

When the courts deal, as ours do, with great public questions, the only protection against unwise decisions, and even judicial usurpation, is careful scrutiny of their actions and fearless comment upon it. Judicial and political criticism of the public and the media at Mark Middleton's sentencing is misguided. John Howard writes.

For centuries, judicial independence has been a foundation of law. But judges, or politicians, cannot, and should not, live in a vacuum.

Judical independence can only ever be institutional independence - unlimited terms and guaranteed pay - and be a means to an end.

What New Zealand judges and politicians seem to be saying now, is that judicial independence is an end in itself, insisting on independence from everything - particularly the will of the people.

If the foundation of our democracy is, "the democratic will of the people expressed in Parliament", what happens when that expressed will is ignored by politicians?

It is simply misguided for politicians to criticise public outrage over something which the politicians themselves have failed to do. It now seems that views or attitudes of the public that the politicians do not share cannot be legitimate, believing that public views are coming from some ulterior motive or secret agenda.

Moreover, too often of late, soliloquies in Parliament are spoken to an almost empty chamber. The House of Representatives Parliamentary system, in my view, is broke.

Mark Middleton broke the law, that's clear. But the public supported him out of a sense of frustration that even after a huge petition and referendum at the last election seeking tougher sentencing, political action did not seem forthcoming - until now.

But judges, in keeping with public sentiment, had already started to increase non-parole periods for certain types of offenders. The public outrage from the Mark Middleton case means the judiciary is at fault for not explaining that much earlier.

In Australia, top judges regularly appear on television and radio with commentary about their functions. I suggested that to former Chief Justice Sir Thomas Eichelbaum some years ago, but nothing was done. Is it surprising, then, that public confidence in our judiciary and the judicial system is arguably at an all-time low?

Judges have to call it as they see it. To use an old saying, if we are to be a nation of laws and not of men, then judges must be impartial referees who defend our constitutional principles from attempts by particular interests to overwhelm them in the name of expediency.

But New Zealand doesn't have a "We the People" written constitution with fixed meanings for guidance. We have an unwritten, evolving and fluid constitution and because of that, I predict we can expect more public activism over other concerns in our society.

The little known story of Dimitar Pesev shows both the power of self-deception and the explosive effect of telling the truth and the dangers inherent in allowing the rule of law and the truth to succumb to political movements of the moment.

Pesev was the vice-president of the Bulgarian Parliament during World War II. He was a civil-servant, doing his job as best he could, raising his family and struggling through a terrible moment in European history.

Bulgaria was pretty lucky, because it managed to stay out of the fighting, even though the Nazis had placed the Bulgarian government and the king, under enormous pressure to enter the war on the side of the Axis, or at a minimum to permit the destruction of the Bulgarian Jews.

The leaders of the time were unwilling to turn their citizens over to certain death but, like many other small European countries, Bulgaria moved toward the Holocaust in small steps.

Pesev was one of many Bulgarian officials who heard rumours of a new government policy and constantly queried his ministers. They lied to him, and for a time he believed their lies. But, in the final hours, a handful of citizens from Pesev's hometown raced to Sofia to tell him the truth - that Jews were being rounded up, that the trains were waiting.

According to the law such actions were illegal. So Pesev forced his way into the office of the interior minister, demanding to know the truth. The minister repeated the official line, but Pesev didn't believe him. He demanded that the minister place a telephone call to the local authorities and remind them of their legal obligations.

This brave act, against the power of the government, saved the lives of the Bulgarian Jews. Pesev then circulated a letter to all members of Parliament, condemning the violation of the law, and demanding the government ensure that no such thing take place ever again.

Pesev's words moved all those who until that moment had not imagined what could happen but who now could not accept what they had discovered. He had broken through the wall of self-deception and forced his colleagues to face the truth.

There is no monument to this brave man, quite the contrary. The ministers were embarrassed and made him pay the price for their wickedness. He was removed from the position of vice-president, publicly chastised for breaking ranks, and politically isolated. But he had won nevertheless.

The king henceforth found ways to stall the Nazis, the Bulgarian Orthodox Church publicly defended the country's Jews and even the most convinced antisemites in the Bulgarian government dared not advocate active cooperation with the Third Reich.

After the war, the Communists took over Bulgaria and rewrote history giving themselves credit for saving the Jews. Pesev was sent to a gulag and his story was only rediscovered after the collapse of the Soviet Union.

Were the actions of Pesev worth it? If Pesev wanted to be popular it was counterproductive to disagree with the government. If Pesev just wanted to tread water until the next holidays, it wasn't worth the agony. If Pesev just wanted to muddle through, it was not worth it.

So, to avoid criticism, say nothing, do nothing, be nothing.

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