The highly qualified and regarded former Attorney-General Chris Finlayson is the latest in a growing number of legal experts who are now raising serious questions about the legality of what has been happening in NZ over the past 6 weeks.
While the Government is refusing to publicly release the offical advice it received from Crown Law about the legality of the New Zealand lockdown, leaked emails from the NZ police paint a very concerning picture.
One of the most troubling aspects of this lockdown has been the way in which the Government has decided to take a punitive stick (instead of carrot) based approach to this whole process - even to the point of implementing a system for citizens to report on each other to the state over suspected violations.
The willingness so many Kiwis have shown to participate in this venture (with such enthusiasm that we quickly crashed the 'dob in your neighbour' hotline) offers a frightening insight into just how easily and quickly a totalitarian regime could conform a population to its will.
This sort of approach doesn’t just do great harm to social cohesion by breeding a natural culture of distrust amongst people, and by handing far too much unchecked power to the state, but we also disincentive personal responsibility and moral initiative on the part of individuals if we train them only to do the good out of fear of state punishment rather than because it is the right thing to do.
The thing is that we actually need personal responsibility and prudent initiative on the part of individuals now more than ever before as we move out of this very restrictive lockdown.
The problem is that we have spent the last 6 weeks training a societal habit of acting based on instructions from an overbearing state and under constant threat of punishment.
I can’t imagine that too many police officers would be happy that they have been utilized by the Government in such a questionable way for almost 2 months now either.
Experienced law enforcement officers will know that this poses a great risk to their ability to police effectively beyond the lockdown, when public trust and respect for their role is essential to them being able to do their job to the best of their ability.
Just yesterday the Christchurch police were used to remove citizens - who appear to have been responsibly social distancing and not breaking any laws - from Sumner Beach, simply because they were sitting on the beach without exercising.
If they had been exercising, or surfing they would have been allowed to stay, but because they were sitting they were deemed to be engaging in a punishable activity by police.
Such an arbitrary application of police powers by the state should have us all asking some hard questions of the Government - especially when we know that sitting in the open air on a hot day is probably one of the safer places for someone to be right now, and that the mental health benefits of such activity are more essential than ever before.
When you add to this the fact that all funerals were suddenly and arbitrarily outlawed for many weeks; or that the act of driving alone - even if you never left the vehicle and the trip was short - was outlawed for over a month; or that it was outlawed for you to leave your home for any reason other than healthcare, supermarket shopping, or exercising locally, you can start to appreciate just how much power the NZ Government has been wielding over the population for almost two months now.
And for most of that time they have been doing this without the oversight and accountability of a properly functioning Parliament.
It would be very tempting to look at the current Coronavirus case rate in NZ and say ‘what’s the big deal? We got a good outcome didn’t we?’
That would lack healthy prudence and be a serious mistake of moral reasoning.
It would make us consequentialists who think that the end justifies the means, when the means we are talking about is a Government completely disregarding the rule of law.
This is the very same rule of law that we all rely on to ensure that our fundamental human rights are never violated by the state or any other party.
The moral case for some form of lockdown is a sound one (certainly in the initial stages of this pandemic), but it is important to remember that the very same moral law which gives ethical justification to a lockdown is the very same moral law which would also tell us that in order for governments to be just and ethical they should act according to the rule of law.
If we're willing to turn a blind eye this time, we shouldn't be surprised to discover that our political leaders take a rather all too fond liking to this dangerous level of power and loss of fundamental human rights we are happy to surrender without any regard to the important principle of the rule of law.
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