Law, luck and legitimacy
The news that the Government’s lockdown rules are to be subject to judicial review cannot come as surprise to many, but there is more to law than statutes and the pronouncements of judges.
Law is, put simply, the rules of society, which exist in the minds of men and women as much as on the written page. If we ever needed a reminder of this fact, then the Covid-19 epidemic has provided the evidence.
The Government’s decision to lock down the country on March 25 was swift, and the level of social isolation that the public experts deemed necessary surprised many.
It also proved a constitutional challenge as the legal tools that the Government had at its disposal were not designed to implement it. As a result, the ‘‘orders’’ by the directorgeneral of health were legally questionable and the high level of discretion being exercised by the police undesirable.
Although criticism led to some welcome changes, the whole legal edifice of the lockdown has continued to operate on less than solid ground, as hinted at by the Court of Appeal president. It is perhaps just as well that these hard compliance mechanisms were used in only a small minority of cases.
Instead, the population largely adhered to the level 4 lockdown rules of their own accord.
Crucial to this was the quality of communication and the surefootedness shown by the prime minister, which instilled a legitimacy in the rules announced, something that can be contrasted with the disastrous steps of many leaders overseas.
While some vacillated, others attempted to balance public health issues against economic consequences, under the mistaken belief that such a balance is possible. Pandemics cause severe economic disasters, as history has shown repeatedly.
The only issue a political leader can address is whether that economic pain should be accompanied by death and disease. Jacinda Ardern’s swift and measured intervention has averted the latter, at least for now.
In addition, the fact that a public health expert was at the helm of the agency tasked with managing the pandemic response in New Zealand should not be underestimated. Dr Ashley Bloomfield has been able to respond authoritatively and provide confidence to a nervous populace.
That these two leaders were in these key positions at this time was crucial. Their presence drove good policy, provided mana to their decisions and, importantly, gave moral legitimacy to the rules they asked the populace to adhere to.
This moral legitimacy meant that, despite issues about the nature and scope of the powers being raised during the early days of level 4, few questioned their substance. The law was accepted as legitimate by the community and ‘‘enforced’’ by the population. As a result, the population (in the main) stayed home.
Godzone was indeed blessed to have in place those with leadership skills and mana at New Zealand’s time of need.
But relying on luck has its limits.
Now, as the country heads into the uncertainty that is level 2, leadership may not be enough. It is already clear under level 3 that increasing numbers of people are willing to break or question the rules as evidenced by the current legal challenge.
The legitimacy that sustained us through level 4 will likely now need to be backed up by new, water-tight, hard law.
For this reason, new legislation is now essential in ensuring that appropriate restrictions can be clearly enforced in the longer term while ensuring sufficient checks and balances exist to retain the support of the of mass of the population. This is a difficult task made more so by the need to introduce a new legal framework capable of managing a long and complex recovery.
The real problem is that the time to do this was in advance of a disaster, not in the middle of one. Yet, despite the post-Canterbury warnings that New Zealand needed to improve its legal frameworks around response and recovery, the gaps in our disaster law were largely left unfilled.
Instead, once again, New Zealand finds itself needing to rush through legislation at the exact moment when we don’t have the time to consider its consequences. Christchurch’s painful and partial recovery is evidence of what happens when we get this wrong.
This time, when a degree of normality returns, we need to address these gaps, but for now, let us hope that our luck holds, just a little longer.