QED

Government by Virus and Executive Diktat

My state, Western Australia, has just recorded its fourth death attributed to the Wuhan virus — another elderly man, like so many other casualties, already inflicted with chronic illness when infected. Surely such an “enormous” death toll justifies dramatic measures to curtail fundamental rights, as well as the Morrison’s government spending $320 billion — 16.4 per cent of the nation’s gross domestic product — to combat the virus’ health and economic effects caused by the same measures imposed by the government itself.

Because these extreme measures are dictated by the executive and have no deadline to expire, we are effectively experiencing government by executive decree. This is something akin to the actions of deeply authoritarian regimes, in particular when such executive measures are not properly scrutinised.

The limitation of powers designed by the drafters of the Constitution is commonly traced to the work of the French philosopher and political theorist, Charles-Louis de Secondat, Baron de La Brède et de Montesquieu. First published in 1748, Montesquieu’s The Spirit of the Laws, received widespread public acclamation. Its first English translation, in 1750, became so popular that those who supported the ratification of the American Constitution, as well as those who argued against it, relied heavily on Montesquieu to justify their positions.

Inspired by the American model, the Australian Constitution establishes a system of checks and balances and of division of powers. This is so, among other things, because Montesquieu reminded the Australian framers that “constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go”. To prevent this, ‘it is necessary from the very nature of things that power should be a check to power”, he wrote.

Montesquieu believed a division of powers is essential to counteract the concentration of power on the executive branch. Central to the idea is a conviction that whenever power becomes too highly concentrated in the hands of a few individuals, the risk of arbitrariness increases as a result of such accumulation of power in a single person or institution. Since political rulers are naturally prone to become more corrupt and self-centred, he correctly reminded us:

Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits? 

To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits”.
                       —
The Spirit of Laws (1748), Of the Laws Which Establish Political Liberty, with Regard to the Constitution.

Historically, the ideal of legality known as ‘the rule of law’ presupposes the existence of law serving as an effective check on the executive power. The phrase is designed to minimise the executive power, so that our fundamental rights and freedoms may be adequately preserved. By forcing the executive branch to follow proper rules of law, the rule of law operates to reduce the possibility of government being able to excessively coerce, obstruct or otherwise unreasonably interfere with the life, liberty and property of the citizen. The tradition operates in terms of providing legal and institutional instruments to protect citizens against the arbitrary power of the state. As St Thomas Aquinas stated,

…once the government is established, this must be so arranged that opportunity to tyrannize be removed. At the same time, the power of government should be so tempered that it cannot easily fall into political tyranny. De Regimine Principum Bk I, Ch 2.

And Aquinas also stated:

If it is a people’s right to provide itself with a political ruler, and if that ruler abuses his executive power, there is no injustice if the community deposes or checks him whom they have raised to the government, nor can it be charged with a breach of faith for abandoning a tyrant, even if the people had previously bound themselves to him in perpetuity; because, by not faithfully conducting himself in government as the executive office demands, he has brought it on himself if his subjects renounce their bargain with him”. — De Regimine Principium, Bk 1, Ch 6

The political principle supported by Aquinas – namely, the supremacy of the legislature over the executive – aims ultimately at the protection of fundamental rights and freedoms. Accordingly, his analysis is a prescription for limited government, providing a rational basis on which to affirm that there must be very clear institutional limits to what governments can rightly do. His insistence that the power of the executive be explicitly limited implies a right of the citizen not to be subjected to authoritarian rule by means of executive decree.

On the other hand, modern discussions of the rule of law often start with the views of Albert Venn Dicey (1835–1922). This celebrated 19th-century English constitutional lawyer argued that the rule of law implies three basic elements, namely: (1) supremacy of the law as opposed to the arbitrary exercise of executive power; (2) equality of all before the law to be administered by ordinary courts; and (3) judicial protection of individual rights and freedoms.  (Introduction to the Study of the Law of the Constitution – Part II, 1885).

A government under the rule of law is therefore one whose political legitimacy resides in the exercise of power according to clear rules of law. As noted by the late German sociologist Max Weber, the context of government under the law implies “that the person who obeys authority does so, as it is usually stated, only in his capacity as a member of the corporate group and what he obeys is only the law”.

The concept of the rule of law therefore stands in frontal opposition to extemporary decisions expressing the arbitrary will of the executive branch of government. It is generally observed that the exercise of executive powers invariably necessitates the existence of clear, stable, general rules to regulate such exercise of powers, which must therefore be approved by elected legislature and receive proper public scrutiny.

Above all, truly democratic governments are bound to exercise power according to the law.

However, the Australian government and the state governments appear to be effectively ruling by executive decree. These extraordinary controls on our freedoms have no constitutional validity because they are certainly not powers intended to be exercised in its present form. Above all, Australians would be wise to pay more consideration to these wise words of Thomas Jefferson, the main drafter of the American Declaration of Independence: “A government big enough to give you everything you want, is strong enough to take everything you have”.

As for myself, I am deeply afraid to conclude that this country is now effectively governed by a less open or more disguised form of elected dictatorship (executive dominance) – consisting of executive rule by decree and with no proper public scrutiny available.

Of course, a democratic-constitutional framework depends not just on the character of public authorities, but also on the willingness of the people to fight for their rights and freedoms. As it has been more properly said, indeed, “the price of liberty is eternal vigilance”.

It is truly disturbing to observe how a considerable number of Australians willingly surrendered their constitutional rights and freedoms in the name of more government security and protection. Such carelessness may eventually prove lethal not only to the long-term preservation of democratic government but also to the preservation of their basic rights to life, liberty and property.

Dr Augusto Zimmermann PhD, LLM, LLB is Professor and Head of Law at Sheridan College in Perth/WA, and Professor of Law (Adjunct) at the University of Notre Dame Australia, Sydney campus. He is President of the Western Australian Legal Theory Association (WALTA), and former Law Reform Commissioner with the Law Reform Commission of Western Australia, from 2012-2017 (appointed by then state Attorney General Christian Porter). Dr Zimmermann was chair and professor of constitutional law at Murdoch University from 2007 to 2017

10 comments
  • DG

    The media often takes upon itself the mantle of ‘protector of democracy’ (or these days, transmogrified into protector of the madness of crowds), yet it is disturbing to see no reaction in the popular media to these government diktats, or the underlying practice of government by diktat. If it is this easy to suspend democratic process with not a word of protest, how close we must be to the government style of Messrs Franco, Mussolini or Schicklgruber.

  • Stephen Due

    Sadly the principles outlined in this article have long since been forgotten by the vast majority of the Australian population. We do not value our liberty as we should. History from the ancient Greeks and Romans onward affords salutary examples of the way in which emergency powers granted to rulers morph into dictatorships. We seem to have plenty of would-be dictators in Australia – in my state Daniel Andrews appears to be reveling in acting out the role – but precious view who are willing to stand or freedom. The surveillance state looms. All the basic mechanisms of totalitarianism are being lovingly slotted into place, one by one, by Australian governments. And most of the people think it’s a good thing.

  • Stephen Due

    Sorry ‘view’ should be ‘few’. Computer’s fault.

  • pgang

    Amen to that Augusto. Tyranny is what I call it.

    Incidentally the balance between individual freedom and the good of the group, or society as represented by government, only finds its true and meaningful existence as a reflection of the perfect trinitarian nature of God. There is no possible humanist or natural model that is able to balance or combine these two opposing ideals. That is why all thought without God as its basis is irrational and self-defeating. For me it is convincing proof that the Bible is a trustworthy exposition of reality.

  • Macspee

    Does anyone know
    1. Under what law are these people acting?
    2 if there is such a law, are their actions within that law?
    Clearly the rule of law is replaced by executive urge and we pay the price as will our great grandchildren.

  • Biggles

    Tongue in cheek: “Inspired by the American model, the Australian Constitution establishes a system…” Sorry Augusto, (and I am great fan of yours), surely you know that Paul Keating has decreed that the Australian Constitution was written by the British Foreign Office.

  • ianl

    Macspee

    While the Australian Constitution may limit the power of the Commonwealth Govt and that of the States if Fed-State legislation is conflicting, the fact is that the States have no written constitution. Further, the High Court has several times confirmed that the State has no obligation to inform citizens of the actual law per se, although citizens most assuredly have an obligation under penalty to obey it.
    The various police forces, excepting the AFP, are State organs. The obvious arbitrariness of their actions in enforcing “social distancing” is quite deliberate – the populace is kept too scared of breaking arbitrary and constantly changing rules to actually do anything. A well-known management technique.
    So the answer to your question is: “We don’t need no laws”.
    Sorry Augusto Zimmerman, your angst is both justified and impotent.

  • pgang

    ianl interesting points, I’ve also been wondering where the government obtains the legal authority to lock people in their houses, tell them where to stand in relation to each other, and prevent them from generally moving about. There is no more draconian system of control that I can imagine. Could it be challenged in court if you were fined?
    Or are you saying that they do not need legislation for this? Maybe I’ve missed something (very likely as I pretty much ignore all the virus garbage) and laws have been created upon which the police are acting?
    Your second paragraph is certainly true in the outcome, but do you really think that this is being done on purpose? The police don’t strike me as being that clever, and perhaps the arbitrariness is simply mean-ness.

  • pgang

    To give the virus ‘crisis’ some perspective:
    Average wuhan virus deaths per day in USA since 1st Jan 2020 – 150.
    Average deaths per day in USA from flu and respiratory disease – 2,180.
    Average abortions per day in USA since 1st Jan 2020 – 3,000.

  • Peter Sandery

    To ianl. I don’t know to what states you are referring but I am sure that I have seen a copy of Queensland’s constitution – it was revamped by a Labor government not that long ago as I understand but perhaps senility is getting the better of me.

Post a comment

You must be logged in to post a comment.