Parliaments Sovereignty challenged

17th June 2016

“Under our system of government, parliament makes laws, and the courts are supposed to apply them – whether they like a particular law or not. The recent Three Strikes appeal has all the signs that the Courts are intending to ignore Parliament." McVicar

Last week the Court of Appeal heard the first two of five appeals against the High Court’s failure to impose life without parole (LWOP) as provided for in the “three strikes” (3S) law on three second strike murderers. The law contains an “out” proviso under which the court may impose a lesser sentence than LWOP “if it would be manifestly unjust” to impose the sentence the law clearly provides for. Miraculously, in all the cases thus far, the High Court has found that LWOP would be manifestly unjust.

“Under our system of government, parliament makes laws, and the courts are supposed to apply them – whether they like a particular law or not. When there is some ambiguity or lack of clarity in what the law says, but only then, the courts may look to parliamentary debates to determine what the intention of parliament was. I spent several days last week listening to lawyers and judges making a mockery of that process” said Sensible Sentencing Trust founder Garth McVicar.

“The law is very clear – if you commit murder as your second strike offence, you go to jail for the rest of your life. Very simple. I am told – by the architect of the law, former ACT MP David Garrett – that the phrase ‘manifestly unjust’ was inserted into the law as a safeguard to cover very rare or exceptional cases. It simply beggars belief that in all fiveof the first such cases, involving very different fact situations, it would be ‘manifestly unjust’ to apply the law as actually written.”

“From the beginning, it was clear to me that the judges were doing everything they could to both misinterpret parliament’s intent, and to pervert it. It began with the concept of disproportionality in sentencing – something both the lawyers and the judges harped on about throughout the hearings”

“Although the judges purported not to get it, it is quite clear that parliament intended sentences to become disproportionately severe if violent offenders kept offending. That point was made in the House – both by Mr Garrett and the Hon. Judith Collins – a number of times as the Bill went through parliament. That in fact was the whole rationale for the 3S regime – if you keep offending, the consequences get exponentially more serious”

“The judges are quite clearly men of considerable intelligence. I am a farmer from Hawkes Bay with a high school education. If I can grasp this simple principle why can’t they? The answer can only be, of course, that they can – but choose not to.”

“ In one of the cases, involving a long time gang member who was a party to a murder by a gang ‘prospect’, it was argued that because his first strike offence was relatively minor, he should escape the rigours of the 3S regime. Mr Garrett advises me that at no point during the parliamentary debates was that said by the speakers on the government side of the House. If that is the case, how can the judges possibly read in – from something that was never said – an intent which appears nowhere in the 3S legislation?”

“Make no mistake – these two cases and those which will follow it are a direct challenge by the courts to the sovereignty of parliament. We elect members of parliament to pass laws on behalf of the rest of us. We appoint judges – who cannot be removed from office – to apply those laws fairly, and without fear or favour.”

“ I could be in for a pleasant surprise when the Court of Appeal releases their judgments on these two cases in the fullness of time. From what I heard last week, I think that’s pretty unlikely.” ENDS

ENDS

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