David Clendon

Justice by other means?

by David Clendon

The Editor of the Dominion Post newspaper has come out very strongly in favour of a legislative change that would ensure the continued imprisonment of  Stewart Wilson, the so called ‘beast of Blenheim’.

Wilson has served 18 years in prison, is coming to the end of his sentence, and under existing law must be released no later than September this year.

The Justice Minister, Judith Collins, has indicated that we will soon see before Parliament a bill that would make it possible to extend Wilson’s sentence, to keep him in prison despite the completion of his term.

The Minister denies there are any human rights issues, and insists that in any case the bill ‘will be assessed for consistency against the New Zealand Bill of Rights Act’. This is at best disingenuous – the Minister knows full well that even if a bill is deemed inconsistent with NZBORA it can be passed unhindered through the House.

Section 4 of the NZBORA states that :

  • No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),—

    • (a) hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or

    • (b) decline to apply any provision of the enactment—

    by reason only that the provision is inconsistent with any provision of this Bill of Rights

This is a wholly unsatisfactory situation, and one that a private member’s bill in my name would seek to rectify if pulled from the ballot box, but it is the current law.

The Universal Declaration of Human Rights, in Article 11,  speaks plainly against “…a heavier penalty be[ing] imposed than the one that was applicable at the time the penal offence was committed”.

Wilson’s crimes were horrific, and if sentenced today he could be liable to a sentence of preventative detention, effectively an ‘open-ended’ sentence that would allow for his continued imprisonment.

To use the power of Parliament to retrospectively apply a heavier sentence is, however, a dangerous road to tread.  Parliament makes law which the judiciary then applies, and retro-fitting that relationship in response to a single case is rarely a good idea. This is especially true when there are existing remedies, other means to deal with any threat to public safety.

The Minister does of course have every right to present a bill, and doubtless a bill such as that being proposed will find some level of support both in Parliament and in the public domain. What the Minister must not do is push the bill through in haste, in any way that reduces the opportunity for the fully informed and balanced debate which is appropriate to anything that meddles with or potentially compromises our basic commitment to human rights and the rule of law.

It is when we as a society are dealing with the most beastly of human actions that we must take the greatest care to exercise our reason, our commitment to justice and proper process, our humanity. 

Published in Environment & Resource Management by David Clendon on Fri, April 20th, 2012   

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