Tuesday, 19 December 2017


Sunday the 17th of December was the day I dusted off the cobwebs, inflated the tyres and took my pushbike out for a ride in the country. I used to cycle regularly, but for over 2 years I have not been able to. For several years I have been taking a drug every two-months to help my body deal with a disease that I have been living with for some time. The down-side to this drug is that while it is great at knocking back the main disease, it can, in a small number of cases, weaken your body’s ability to fight infections.

I was one of the small cohort of people that this happened to. Slowly I found that I developed a cough that would not go. Gradually it became worse. I caught a cold and it developed into pneumonia. Courses of antibiotics were prescribed, with no or limited effect. There followed several admissions to hospital. My back and chest ached from the pain of constant coughing.

My life changed dramatically. I could not go out at night, and had to stay out of draughts. I became run down and could no longer cycle or walk. Work and even small amounts of exercise became a struggle.

Things changed when I met my local hospital’s immunology team. I now go in one day a month to be topped up with blood products. My immune system receives a boost because of the donated blood of others. I am so grateful to the New Zealand Blood Service and to those New Zealanders who give up their time and donate their blood. I only wish that I could do the same.

This Christmas be a real Secret Santa, not just for one month, but throughout the year. If you are healthy, consider donating blood. It makes a real difference to so many people. Blood donors, who I may never meet, have given me the opportunity to ride my bike and feel the sun on my back and the wind on my face. Thanks so much.

As the NZ Blood Service site says: “SAVING LIVES, IT’S IN OUR BLOOD”. Make a booking to donate: 0800 GIVE BLOOD

Sunday, 8 October 2017

The Need for a Written Constitution

Towards the tail-end of our recent campaign for the general election, Government Minister Paula Bennett declared that some people should have less human rights. At around the same time, Prime Minister Bill English picked up on this and said, commented that "it was good that new Zealand lacked a written constitution as it gave governments flexibility."

French political philosopher Montesquieu has pointed out that ‘there is no liberty, if the power of judgment be not separated from the legislative and executive powers’. Alexander Hamilton, following Montesquieu, described an independent Judiciary as ‘the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws’. 

Responsibility for the state of the law and its implementation must rest with the branches of government that are politically accountable to the people. The people can bring influence to bear on the legislature and the executive to procure compliance with the popular will. The problem with New Zealand, is that we lack an entrenched Constitution to "ring fence" people as individuals from the arbitrary exercise of power by the legislature. In other words what the Prime Minister calls, "flexibility", means the untrammelled ability for Parliament to take away the rights of citizens.

This power, if not checked, can lead to the arbitrary use of power, often fuelled by populism. However, with no check, the exercise of the popular will can lead to the arbitrary exercise of power, leading to what one commentator has called, "the Tyranny of the Majority".  In New Zealand, where we have no written Constitution, Parliament has an unfettered ability to pass laws, even if they offend against fundamental liberties and human rights.

But a clamour for a popular decision must fall on deaf judicial ears. The Judiciary are not politically accountable. The Courts cannot temper the true application of the law to satisfy popular sentiment.

Parliament can pass laws and our Courts enforce them. However, the risk in our system, is that while Courts are bound to a correct application of the law, whether or not that leads to a popular decision in a particular case and whether or not the decision accords with executive policy. 

A written Constitution empowers the judiciary and can operate as a check on the Legislature. In the Australian case of Clunies-Ross v The Commonwealth ((1984) 155 CLR 193 at 204.) the High Court said: 

It would be an abdication of the duty of this Court under the Constitution if we were to determine the important and general question of law ... according to whether we personally agreed or disagreed with the political and social objectives which the Minister sought to achieve. ... As a matter of constitutional duty, that question must be considered objectively and answered in this Court as a question of law and not as a matter to be determined by reference to the political or social merits of the particular case. The rule of law would be a hollow phrase if the Courts were not bound to ignore popularity as an influence on a decision

Alexander Hamilton in the Federalist Papers over 200 years ago observed of the US Constitution: 

Considerate men of every description ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today. And every man must now feel that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence and to introduce in its stead universal distrust and distress. Some critics of the Judiciary, and even some Judges, mistake public popularity for confidence. But if the Courts were to seek popular acclaim, they could not be faithful to the rule of law. Confidence is based on faithful adherence to the law by the Courts which are charged with its declaration and application. Our Constitution, rooted in the common law, does not need to express the proposition that the nation is under the rule of law and that the Courts are the organ of government responsible ultimately for the enforcing of the rule of law. 

Some critics of the Judiciary, and even some Judges, mistake public popularity for confidence. But if the Courts were to seek popular acclaim, they could not be faithful to the rule of law. The problem with this from a New Zealand perspective, is that we do not have a written Constitution, thus often where the Courts arrive at a decision that upholds human rights, this may be seen as politically unpopular, and Parliament can therefore by dint of a mere majority appeal to populism and erode the principle that the Court sought to uphold.

Sadly, because of this we have seen the right to elect trial by jury, voting rights, the loss of the partial defence of provocation for murder, the equality of arms (in terms of fair trial rights), and a host of other rights eroded by our Legislature in recent years. 

While most people have little sympathy for gang-members and might believe, they deserve less human rights protections than others; I have no doubt that that these same people would be aghast if Police used their road side check-point power as a ruse to obtain the details of elderly New Zealanders on their way home at night from attending a pro-euthanasia meeting at their local community hall (this actually happened in Lower Hutt last year). You see, once you say, some people have less rights than others, where does it stop? Who decides?

So the comments of Ms Bennett and the Prime Minister are equally concerning. Just replace "gang member" with "euthanasia supporter" and you see the risk. Human rights don't attach to people because of their standing in society.  They attach because we are human. 

The logic behind the Prime Minister's stated delight for "flexibility" is a slippery slope and smacks of populism. That our politicians have sacrificed so easily, fundamental bulwarks against the abuse of state power, speaks not only of their ignorance of Constitutional conventions; but also of the fundamental weakness of a Constitution that is unwritten and relies for its survival upon the quality and character of those who occupy the driver's seat at any given time.

“The accumulation of all powers, legislative, executive and judicia[l] in the same hands, whether of one, a few, or many, and whether hereditary, self–appointed, or elective, may justly be pronounced the very definition of tyranny” (James Madison, Federalist No. 51, 1788).

Thursday, 3 August 2017


The article “Do I let my boss microchip me” (Dompost 2 August), told the story of Melissa Timmins an employee of a firm in the States where the employer offered staff the the option of  having microchips inserted in their hands, rather than having to carry around swipe cards. Some 50 of the 85 staff were expected to take up the offer. The chips will be inserted at a "chip party" where staff will celebrate with corn chips and salsa.

The story raised some interesting issues about people being implanted with microchips. Certainly, it may seem convenient to carry all you need in a microchip implanted in the tip of your finger, rather than a wallet stuffed with credit and loyalty cards, but there are huge risks with microchipping people. Yes, it will mean no more getting away with riding the train or bus for free, or driving faster than permitted, making up an excuse for why we got to work late as machines monitors where we are and when we arrive.

Rather than payWave all you need do is flip your finger as you pass by a sensor, and payments will be automatically deducted from your account. However, with this, service providers will have more access to more information, which will also severely limit our freedoms. For instance, will we still be able to choose to pay with cash or our credit card or will we be forced to pay with chip?  The information on our chips could be corrupted, wiped or copied. Criminals could use your data, copy it onto another chip or replace it with their own data, altering your digital identity. It would make it very easy for Big Brother to continuously track where we are, what we do, how we do it and whom we’re doing it with. Further, what if a scammer takes your finger, and goes on a spending spree, you will be stumped?

Then there are potential health concerns. One review of academic literature found an increased risk of cancer in eight of eleven studies following the microchipping of animals; "In almost all cases, the malignant tumors, typically sarcomas, arose at the site of the implants and grew to surround and fully encase the devices. In several cases the tumors also metastasized or spread to other parts of the animals. The tumors generally occurred in the second year of the studies, during middle age or older for the animals.” (Synopsis of “Microchip Induced Tumors in Laboratory Rodents and Dogs: A Review of the Literature 
1990–2006” Katherine Albrecht, Ed.D.)

Microchipping the population raises more problems than it solves, both in terms of health but also in terms of the erosion of privacy while providing valuable information to corporations and governments. It seems that as we advance in terms of technology we simultaneously surrender hard fought for rights and freedoms. As Joni Mitchell sang, “Don’t it always seem to go, that you don’t know what you’ve got, till it’s gone”. I hope it is not too late. 

Saturday, 22 July 2017

What Might A Charge Against Donald J Trump Look Like?

The New York Times reports, "President Trump on Saturday asserted the “complete power to pardon” relatives, aides and possibly even himself in response to investigations into Russia’s meddling in last year’s election, as he came to the defense of Attorney General Jeff Sessions just days after expressing regret about appointing him."  This is a clear expression of how Mr Trump sees himself within the Constitution. He is above it and not beholden to it. 

Why is this a concern? Does Mr Trump have absolute power, and is he a source of unchecked power?  In many ways the current president behaves more like a monarch and not a constitutional one at that. This probably explains his affinity with tyrants who wield power unchecked by Law.

Trump claims his legitimacy from the Constitution and his winning the Electoral College vote authorised by it, to be President. However, as the Trump train progressively careens off the tracks of the Constitution, it departs from it. I believe as he does so, he loses his claim to any legitimacy.

In many ways his actions remind me of King Charles I, who held himself apart from his people and their Parliament. Perhaps the process adopted to charge Charles I, could be amended to charge Mr Trump, after all he wishes to assert a form of sovereignty, whereby he is answerable to no one except himself.

I have adapted the charge against that Monarch to fit Mr Trump:
The original text is taken from: The Charge against the King.
 [January 20, 1648/9. Rushworth, vii. 1396. See Great Civil War, iv. 299.]
“That the said Donald J Trump, being admitted President of the United States of America, and therein trusted with a limited power to govern by and according to the laws of the land, and not otherwise; and by his trust, oath, and office, being obliged to use the power committed to him for the good and benefit of the people, and for the preservation of their rights and liberties; yet, nevertheless, out of a wicked design to erect and uphold in himself an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people, yea, to take away and make void the foundations thereof, and of all redress and remedy of misgovernment, which by the fundamental constitutions of this Commonwealth were reserved on the people's behalf in the right and power of Congress; he, the said Donald J Trump, for accomplishment of such his designs, and for the protecting of himself and his adherents in his and their wicked practices, to the same ends hath traitorously and maliciously levied war against the present Congress, and the people therein represented ….. , particularly from 21 January 2017. At and after which, at countless other times within the year(s) aforementioned he, the said Donald J Trump, hath caused by divisions, parties, and insurrections within this land, by hacking invasions from foreign parts, and countless lies and misrepresentations endeavoured and procured by him, and by many other evil ways and means, he, the said Donald J Trump, hath not only maintained and carried on the said war both by land and sea, during the years beforementioned, but also hath renewed, or caused to be renewed, the said war against the Congress. And particularly he, the said Donald J Trump, hath for that purpose given commissions to his sons Donald Trump Jr and Eric Trump and others, whereby, besides multitudes of other persons, many such as were by the Congress entrusted and employed for the safety of the nation (being by him or his agents corrupted to the betraying of their trust, and revolting from the Congress), have had entertainment and commission for the continuing and renewing of war and hostility against the said Congress and people as aforesaid. By which cruel and unnatural wars, by him, the said Donald J Trump, levied, continued, and renewed as aforesaid, much innocent blood of the free people of this nation hath been spilt, many families have been undone, the public treasure wasted and exhausted, trade obstructed and miserably decayed, vast expense and damage to the nation incurred, and many parts of this land spoiled, some of them even to desolation. And for further prosecution of his said evil designs, he, the said Donald J Trump, doth still continue his commissions to the said sons, and other rebels and revolters, both American and foreigners, upon the procurement, and on the behalf of the said Donald J Trump.
All which wicked designs, wars, and evil practices of him, the said Donald J Trump, have been, and are carried on for the advancement and upholding of a personal interest of will, power, and pretended prerogative to himself and his family, against the public interest, common right, liberty, justice, and peace of the people of this nation and Planet, by and from whom he was entrusted as aforesaid.

By all which it appeareth that the said Donald J Trump hath been, and is the occasioner, author, and continuer of the said unnatural, cruel and bloody practices; and therein guilty of all the treasons, murders, rapines, burnings, spoils, desolations, damages and mischiefs to this nation and the Planet, acted and committed in the said wars, or occasioned thereby.”