The chatter about the July 12 Sivia ruling is stepping up among the legal community. One of the issues that a number of people have pointed out is that those who took it upon themselves to challenge the law — an unlawful law, should be rewarded for their courage and compensated for their losses. They stepped forward to say that the Government and the Courts need to honour the constitution. And the Court agreed that they were right to challenge the law. But what would happen had these people who fought the law not stepped forward?
The Sivia decision tells us that if you do your duty as a citizen in a constitutional democracy to stand up for your rights and the rights of others there will be no benefit to you. So why would you step up and to challenge an unlawful law if there is no benefit to you? Of course you wouldn’t. And the Government can then get away with anything.
The Sivia ruling denying a remedy to people who received an IRP is a perverse decision in our view. It poses a moral hazard for the long-term viability of our democracy. The only way unlawful laws such as the IRP scheme can be brought down is by people challenging them in court with the view of obtaining a remedy. If there is no remedy, there is no right. If there is no remedy, there is no reason to challenge an unlawful law. And the Government will have absolute power.
The July 12 Sivia ruling means, in essence, that your rights under the Charter of Rights are there to be trampled on by the Government more or less as it pleases. So they are not rights. And that certainly can’t be what we think of when we conceive of a democracy ruled by laws.