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ISSN 2277 – 8829

A world law fortnightly published from Hyderabad, India.

Editor: I. Mallikarjuna Sharma
ADVISORS: B.P. Jeevan Reddy (Former Judge, Supreme Court of India), R.V.R. Chandrasekhara Rao (Professor,
Politics), Boggarapu Sitaramaiah (Lawyer and Freedom Fighter, Hyderabad), K. Subba Rao (Senior Advocate, Bangalore),
Umesh Chandra (Sr. Advt., Lucknow), Ravi Kiran Jain (Sr. Advt., Allahabad), K. Pratap Reddy (Sr. Advt., Hyderabad),
Sagar Dhara (Engineer, Hyderabad), Kuchelar (Lawyer & labor leader, Madras), Dr. Koenraad Elst (Indologist, Belgium)
Volume 14: Part 1 28 February 2018 No. 4

CONTENTS ACCIDENTAL DROWNING!

1. Accidental Drowning !
2. Historical inevitability or
Electoral corruption? (75) [IMS] 2
3. Political Trouble in India :
1910-1917, J.C. Ker (34) 3-6
4. Judicial Review in India (7)
Dr. R.V.R. Chandrasekhara Rao 7-16
5. Aadhaar: A Grand
Conspiracy, Raman Swamy 17-18
6. Police Officer fired for not
Murdering…, Dr. PCR 19-20
7. WIAL v. New Zealand
Airline Pilots Assn.
& Anr. [NZ-SC] 21-38
8. M.K. Radhi v. Dt. Court
Manukau & Anr. [NZ-SC] 39-56
9. Overcoming the
Shadow Economy
(Stiglitz & Pieth) (3) [END]
10. Conspiracy against Trump
& American Democracy to
go unpunished? (Dr. PCR) 67-68
11. 9/11: An Excuse for an
already planned Invasion
of Iraq, Paul Craig Roberts 69-70
12. On Florida School
Shooting Incident, PCR 71-72
13. Guns in America, J.R. 72
14. Empire of Chaos,
Tom Engelhardt
15. Poems, Stephen Spender
Editorial Office: 6-3-1243/156,
M.S. Makta, Opposite Raj
Bhavan, Hyderabad - 500 082.
Ph: 23300284
E-mail: mani.bal44@gmail.com
1
Sridevi in different poses Sridevi in different poses Priya Rajvamsh
And that in a handful of water! – the reference here is to the heckling
rebuke in Urdu – “Chullu bhar paani mein doob maro!” [Go, die drowning in
a handful of water!]. That was somewhat nebulous to understand but this
‘live tragedy’ in Dubai now opens to its real meaning. So, at last, one of the
most talented actresses of the Indian silver screen, the lady who captivated
millions of Telugu hearts as the ‘atiloka sundari’ [trans-world beauty], is no
more. This editor was suspicious from the beginning and posted on his FB
timeline on 26-02-18 that – “My initial fears confirmed, I now suspect it is
coldblooded murder. Let thorough investigation go on and culprits be strictly
punished if it is really murder. …there was mischief – [how and by whom] will be
revealed only in thorough investigation. Up to then Sridevi's dead body … should
be retained in Dubai itself ... If necessary a second post mortem also should be
conducted by international experts. …She has no reason to commit suicide. TV9
and perhaps other channels too which … propagated [the story of] sudden heart
attack [till now] …are now questioning whether it is accident or suicide? … I don't
think Sridevi is such a weakling to commit suicide. Not only in [this] … but in the
57-66 past too, in two other cases [of deaths of cine actors Uday Kiran and Ranganath] also
I expressed, …stick to, [such] doubts.” And hopes were expressed to the extent
that “…Dubai is not a country where suspicious deaths can be easily passed off as
suicides … (except perhaps in cases involving their own elite and leaders) and hope the
Dubai police and prosecution will meticulously unravel the secrets and contribute
to the strict punishment of the guilty.” But soon everything seems to have been
‘sorted out’ in that Islamic monarchical State, devoid of democratic laws/
practices. The very next day this editor commented, “ANOTHER GREAT
COVER-UP!? Just now news is being broadcast that clearance certificate is given to
bring Sridevi's dead body to India and a chartered plane sent by Ambanis is ready
to bring. All this shows high political intervention from India to undermine the
criminal proceedings and search for truth regarding her suspicious death … in
73-75 Dubai.” Accidental drowning could be possible only if the person is already
unconscious for any reason, otherwise it is well-nigh impossible to happen
76
in a bathtub. Earlier a similar incident of death of another actress Priya
Rajvansh was also sought to be passed off as suicide but the mystery was
unraveled, murder detected, and the accused, some film producers et al,
convicted and sentenced too – that happened in Bombay. This editor finds
no reason to depart from the above doubts/opinions, and hopes that some
day, somehow, and by somebody the real truth would come out. ♣♣♣

Please donate Rs. 50/- or more. 1

NOTE: The opinions and comments in the editorials are exclusively the Editor’s and
need not necessarily reflect the approval or consent of all or any of the
editorial advisors or of the publisher even - IMS.
 2 (2018) 1 LAW
HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?
[Tracing the history of Andhra, Visalandhra and separate Telangana movements]
Though in the previous columns of this article
the details regarding Kakinada Congress and then
some of the later developments in early 1924 were
also covered, some interesting material regarding
the First Hyderabad Political Conference held at
Kakinada taking occasion of the Congress sessions
there, and at the same venue, may be again
considered here, as given in the precious Volume
IV of the Freedom Struggle in Hyderabad, ably
edited by Sri N. Ramesan, and published by ‘The
Andhra Pradesh State Committee for the
Compilation of a History of the Freedom Struggle
in Andhra Pradesh 1966”. It is well-known that it
had become customary for various Conferences of
several prominent people’s/sectional organizations
to be held at and simultaneously on the days of any
Annual Congress session which provided a lot of
advantage to such organizations by augmenting
their manpower and other necessary facilities.
Likewise when the Nizam, His Exalted Highness, of
Hyderabad State refused to accord any permission for any
sort of political meetings and conferences in his domains,
the socio-political activists like Vaman Rao Naik, Madapati
Hanumantha Rao, et al of Hyderabad State thought it fit,
and also very much necessary, for them to take
advantage of the Kakinda Annual Congress sessions in the
Christmas week of 1923 and hold a political conference of
socially and politically interested and active
Hyderabad citizens present at Kakinada. A fortuitous
phenomenon of those days also very much
encouraged their interest and determination. It is so
reported in the above referred to Volume IV:
“…a few officers of the C.I.D. from Hyderabad
had proceeded to Kakinada to assist the Madras
C.I.D. at their request. The main deliberations [of
the INC] did not relate to Hyderabad in any way.
And yet, this session had deep impact on
Hyderabad. Owing to a breach in the east coast line of
the Bengal-Nagpur Railway, most of the up-country and
Bengal political leaders passed through Hyderabad on
their way to Kakinada. Many of these patriotic leaders
were warmly welcomed by the public at the railway
stations… …the Ali Brothers, Sarojini Naidu, C.R. Dass,
♣ demanding, draft.]
Continued from Law Animated World, 31 January 2018
issue; emphases in bold ours - IMS.
Law Animated World, 28 February 2018
- I. Mallikarjuna Sharma♣
and Sardar Vallabhbhai Patel made their speeches at
the request of the people …… This year, as an
extraordinary circumstance, several people from
the [Hyderabad] State had gone to Kakinada ---
about 500 as visitors and 25 as delegates. The
most important matter relating to Hyderabad was
that Vaman Naik, Raghavendrarao Sharma and
Madapati Hanumantha Rao were busy in
inducing people of Hyderabad to hold a political
conference at Kakinada…… [as] such
permission to hold the conference in the State
had been denied to them.
… Vaman Naik and his colleagues had planned
to hold a political conference in the pandal
erected for the volunteers conference at
Kakinada under the presidentship of Sarojini
Naidu. But this proposal was strongly opposed
by Rai Bishesharnath and Abdul Kareem,
pleader from Gulbarga…But secret meetings were
held, opposition brushed aside and a political conference
did take place with Madhav Rao Aney [Berar] in chair,
Sarojini Naidu [as she was quite busy with
Congress Subjects Committee] having expressed
her apology for her inability to preside, and
[some 3 to 4 resolutions passed and it was decided
that the Chairperson should present those resolutions
to HEH the Nizam on going back to the Hyderabad
State]…”
[The resolutions passed are as follows:]
Resolution No. 1:- “That this public meeting of
the subjects of His Exalted Highness now present
at Kakinada most respectfully places on record its
continued and devoted loyalty and fidelity to HEH.”
Resolution No. 2:- “That this meeting most
respectfully invites the attention of H.E.H. to the
Firman graciously issued in Farwardi 1329 Fasli
(1920) announcing the expansion of the Legislative
Council and elected element therein and other liberal
and far-reaching reforms and prays that orders be
speedily issued to give effect to these reforms and new
Councils be formed by the next birthday of His Exalted
Highness thus setting an example to other Indian
States.” [The finally passed version after some
amendments to the first proposed, more assertive and
(to be continued)
2
 POLITICAL TROUBLE IN INDIA, 1907-
1907-1917
1917
CHAPTER IX:
AMERICA
TEACHINGS OF SWAMI VIVEKNANDA
Virchand
Gandhi, Dharmapala & SV
inParliament of Religions, Chicago ‘Chicago pose’ of SV
A society which aims at restoring the
supremacy of the Hindu religion naturally also
glorifies the political status of the Hindus in the
past, and the teachings of the Vedanta Society
tend towards Nationalism in politics. Swami
Vivekananda himself generally avoided the political side
of the case, but by many Hindu nationalists he is
regarded as the guru (religious preceptor) of [217] the
movement. A speech delivered by him in Calcutta
in 1897, soon after his return from Europe and
America, is frequently quoted by them, and the
following passage gives some idea of his views:
“I have faith in my country, and especially in the
youth of my country. The youth of Bengal have
the greatest of all tasks that have ever been
placed on the shoulders of young men. I have
travelled for the last ten years or so the whole of
India, and my conviction is that from the youth of
Bengal will come the power which will raise India once
more to her proper spiritual place. Aye, from the
youth of Bengal, with the immense amount of
feeling and enthusiasm in their blood, will come
those heroes who will march from one corner to
the other of this earth, travel from pole to pole,
preaching and teaching the eternal spiritual truth
of our forefathers. And this is the great work
before you. Therefore, let me conclude, once
more reminding you, ‘Arise, awake and stop not
till the desired end is reached’. Be not afraid, for all
great power, throughout the history of humanity, has
been with the people. From out [of their] ranks have
come all the greatest geniuses of the world, and
♣
Continued from Law Animated World, 15 February 2018
issue; photos and emphases in bold ours - IMS.
3 Law Animated World, 28 February 2018
James Campbell Ker♣
history can only repeat itself. Be not afraid of
anything. You will do marvellous work. The
moment you fear, you are nobody. It is fear that is the
cause of great misery in the world. It is fear that is the
greatest of all superstitions. It is fear that is the
cause of our woes, and it is fearlessness that
brings even heaven in a moment. Therefore arise,
awake, and stop not till the goal is reached.”
His aim was first to raise the spiritual
condition of the people, and he was of opinion
that in India political improvement could come
only through religion as he explained in another
speech delivered in Calcutta.
“Each nation has its own peculiar method of
work. Some work through politics, some through
social reforms, some through other lines. With us
religion is the only ground through which we can move.
The Englishman can understand religion even
through politics. Perhaps the American can
understand religion even through social reforms.
But the Hindu can understand even politics when it
given through religion. Sociology must come [218]
through religion, everything must come through
religion. For that is theme, the rest are the variations,
in t he national life-music.”
THE VEDANTA SOCIETY AND POLITICS
Some of Swami Vivekananda’s followers were
not so reticent. Swami Abhedananda, for a long
time a very successful high priest of the Vedanta
Society of New York, published under the title
“India and Her People,” a series of lectures
delivered by him in America. The book was in
many parts objectionable and in some places clearly
seditious, and was proscribed under the Press Act of
1910 by the Government of Bombay. Again
Bhupendra Nath Dutt, the first editor of the Yugantar to
be convicted of sedition (see page 69) was a younger
brother of Swami Vivekananda, born about 1880. He
was also not unconnected with the Vedanta
Society, for on his release from imprisonment in
June, 1908, he took refuge at the Belur Math and
concealed himself there, successfully evading a
warrant for his arrest, until his departure for New
York where he arrived on 16th August, 1908.
4 Political Trouble in India : 1907-1917 (J.C. Ker)
ANTI-BRITISH SOCIETIES IN NEW YORK
New York was probably chosen by Bhupendra
Nath Dutt as a place of voluntary exile partly
because of the help to be expected from the
society founded there by his brother, and partly
because it was already a centre of anti-British
intrigue. In the autumn of 1906 a society had been
formed called the Pan-Aryan Association at No. 1,
West 34th Street, by Samuel Lucas Joshi, a Maratha
Christian, son of late Rev. Lucas Maloba Joshi of
the Church Missionary Society, and Mahomed
Barkatullah, a Mahomedan from Bhopal. It was
helped by the Irish malcontents of Clan-na-Gael,
but it did not come to much; the same may be
said of the Indo-American National Association
founded in September, 1907, by Myron H. Phelps,
a Broadway lawyer who had already shown anti-
English tendencies by getting up an agitation
during the Boer War. In November, 1907, the
title of his society was changed to the “Society for
the Advancement of India,” which was considered less
likely to give offence to the class of wealthy and
influential Americans whom he wished to interest.
VISIT OF MADAME CAMA
Both societies received some encouragement
form the visit to America of Madame Cama, who
arrived in New York in October, 1907. According
to the lady interviewer of a New York newspaper
she said, “We are in slavery, and I am in America
for the sole purpose of giving a thorough exposé of the
British oppression, which is little understood so far
away, and to interest the warmhearted citizens of
this great Republic in our enfranchisement.”
Madame Cama addressed a few meetings in New
York and elsewhere, but does not seem to have
achieved conspicuous success.
CONDITIONS IN JAPAN
From the beginning of 1908 the United States
began to become a refuge for young anarchist
[revolutionary] Indians. The reasons for this were
that, on the Continent of Europe, Natives of India
were treated with suspicion and were not readily
admitted to ammunition factories or even to
Law Animated World, 28 February 2018
4
(2018) 1 LAW
technical institutions, and, except Paris, the rest
of Europe was generally unfavourable for their
purposes. Japan had also been tried and found
wanting; it had become clear that Japan was very
far from being a country with free institutions and
that the Japanese made no pretense of thinking
that one man was as good as another. Some of the
advanced anarchists [revolutionaries] in India had
tested the matter and discovered that their hopes
in [on] Japan were groundless; that Japan
recognized no common Asiatic bond with the
people of India, and was in fact chiefly engaged
in planning future, territorial expansion at the
expense of other Asiatic peoples, while the
position of the non-Japanese already included in
their Empire compared very unfavorably with the
position of Indians under British rule. During
1907 references occurred from time to time in the
Indian press to the want of cordiality and
assistance shown to Indian students who visited
that country, and the action of Japan in absorbing
Korea came under unfavourable criticism. The
Bengalee of August 2nd, 1907, writing on this
subject, said: “Before the Russo-Japanese War
there was hardly any topic on which the Japanese
press and statesmen waxed more eloquence than
the pan-Asiatic movement and the upheaval of all
the [220] nations of Asia. Her Korean policy,
therefore, has come as a great surprise upon the
Asiatic public.” The moral drawn by the Bengalee
was that all powerful nations, whether Eastern or
Western, were alike, and that the only fault of a nation
was to be weak. The same question was discussed
at length in a letter found in the search of the
house of Arabindo Ghose in May, 1908 (see
Chapter V). The letter was dated Vancouver, 26th
December, 1907, and was from Surendra Mohan
Bose, a Bengali student of whom more will be
heard, who was sent to Japan by the Scientific
and Industrial Association of Calcutta in 1906.
He stated, as the result of his observations, that
the Bengalis were wrong in hoping as they did for
Japanese help in their national movement,
although they had some sympathizers, such as
Mr. Okakura, in Japan.
(2018) 1 LAW Political Trouble in India : 1907-1917 (J.C. Ker)
CONDITIONS IN THE UNITED STATES
In America the case was different; there were
first of all the traditions of the country and a great
parade of freedom, part of which was no doubt
genuine. Then there was, in New York especially,
a strong colony of discontented Irish who were
always ready to take up any movement likely to
embarrass the British Government. These people
received with open arms natives of India with
similar views who could hardly be expected to
estimate correctly how much of the violent talk of
the Irish malcontents was merely froth. Again, in
spite of the strong colour prejudice which exists
more or less throughout the United States, there
were numerous educational institutions to which
natives of India were admitted almost as freely
and with as little prejudice as they were in
England, and all subjects of study were open to
them. Account must also be taken of the
existence in the United States of a fairly large
class, called by others the idle rich, who are
prepared to be enthusiastic about any new thing,
who dabble in Indian Vedantic theology, and
whose charity, in the words of the Military
Attaché at Washington, varies with the square of
the distance. This was the class upon which
Myron Phelps relied to provide funds for his
institution, but it is at best a capricious source,
and as the novelty wore off the subscriptions
decreased. In imitation of Krishnavarma, Phelps had
opened an “India House” in New York, but it had to
be [221] closed for want of funds in February, 1909.
An attempt was made to continue his society
under the new name of the Indo-American Club
but it was not a success; it held occasional
meetings for about a year, mostly in the rooms of
the Vedanta Society, and was finally wound up in
March, 1910. With the failure of these societies,
and the departure of Barkatullah for Japan in
February, and S.L. Joshi and Myron H. Phelps for
India in March, 1909, organised agitation
amongst the Indian student community in New
York came to an end. The Americans who first
interested themselves in natives of India were
disappointed and disgusted with the behaviour of many
of them, and ceased to assist them; for this and other
5
5
reasons New York became much less popular as a
resort for Indian students who betook themselves
further West, mainly to San Francisco and its
neighbourhood.
GEORGE FREEMAN: EARLY HISTORY
A very prominent figure in the circle of disaffected
Indian students in New York was George Freeman, a
member of the staff of the Gaelic American
newspaper. He is an Irishman, born about 1836,
his original name being George Fitzgerald. At the
age of 19 he joined the army and served in the
Crimea during the last year of the war. In the
early seventies he was employed in the office of
the Daily News, London, then under the control
of Mr. Labouchere. His hatred of England arose
out of the execution of a relative in the early part
of the 19th century, the story of which made him
swear that he would injure England wherever he
could. In the course of his chequered career he
farmed for 5 years in Canada, and while there he
advocated the separation of Canada from Britain
and became head of the Separation Party. In order
to amalgamate this movement with the Clan-na-
Gael he went to New York, at the invitation of
William Lyman, chairman of the Clan-na-Gael,
and travelled about America for that purpose.
THE FREE HINDUSTAN
At the end of 1908 George Freeman was taking a
very keen interest in the publication of Free
Hindusthan (see page 119), and was regarded by
Indians in New York as the real leader of the anti-
British movement. Reliable information [222] was
received at the time that Freeman, S.L. Joshi and
Barkatullah used to meet twice a week at
Barkatullah’s house to discuss the situation, and
that George Freeman supervised the publication
of the Free Hindustan at the office of the paper.
In 1909 he attended meetings of Indian students,
and was very suspicious when questioned about
them by strangers. He also warned some of his
Indian friends against those whom he regarded as
British spies. When the Indo-American Club
came to an end in March, 1910, he was present in
the building where the closing meeting was held,
but he did not appear in the meeting itself.
Law Animated World, 28 February 2018
6 Political Trouble in India : 1907-1917 (J.C. Ker)
DISSEMINATION OF SEDITION
In 1910 a curious thing happened. On September
th
28 the Madras Criminal Investigation Department
obtained two packets posted from New York to the
office of the India newspaper of Pondicherry,
containing 14 copies of Madame Cama’s Bande
Mataram for July (see page 113), 4 copies of the
Indian Sociologist for August (see page 106), 8 copies
of the Talwar for April-Mayu (see page 117), and the
Gaelic American for August 13th and 20th. Both covers
were addressed in the same handwriting, and one of
them bore on the inside a printed label, similar to
those with which newspapers are usually sent to
subscribers, on which it was written “7 G. Freeman,
Esq., P.O. Box X 860, New York City, U.S.A.” On
the same side was also the post-mark “Amrit Bazaar,
Calcutta, 23rd July, 1910.” On enquiry it was
ascertained that George Freeman was No. 7 in the list
of subscribers to the Amrit Bazar Patrika of Calcutta,
making it clear that the cover used to send the
revolutionary literature detailed above to India was
the cover in which he had received his copies of the
Calcutta paper turned inside out. In all probability,
therefore, the packet was sent by George Freeman
himself, or at least from the Gaelic American office
under his instructions; this little mistake confirmed
other information regarding the source of many
similar packets received at Pondicherry.
FREE HINDUSTAN STOPPED
In September, 1910, George Freeman was sent
for by Mr. Moss, the District Attorney of New
York, in connection with [223] the publication of
Free Hindusthan. According to his own account the
District Attorney told him “there was nothing in it that
was criminal but very near it.” After this the paper
ceased to appear; George Freeman tried to save his face
by stating that it was stopped because there was no money
to run it, and that it would be started again under
another name, but this promise was not kept.
RIFLE SILENCERS
In December, 1910, it was reported that his
services in the Gaelic American office had been
dispensed with at short notice, and it was evident that
considerable pressure had been brought to bear on
John Devoy, the editor, as he was known to be
disinclined to lose him. As a consequence Freeman
was very hard up in 1911. Amongst other things he
took a great interest in procuring two specimen rifle
Law Animated World, 28 February 2018
6
(2018) 1 LAW
silencers which he said were wanted for
revolutionaries in India. He gave out that he had sent
one to India direct, and that he was trying to procure a
second for Madame Cama in Paris, “who wished to
have the credit of sending one to India.” The whole
story of the silencers, however, was very suspicious;
they were found easily procurable in Paris and even in
India, and there was reason to suspect that it was
started by George Freeman himself for the benefit of
those whom he suspected of watching him.
SUBSIDY FROM MADAME CAMA
There is no doubt that Freeman was in
correspondence with Madame Cama and that she also
sent him money as well as copies of her paper, the
Bande Mataram, for distribution. In an undated letter
in Gujarati to S.R. Rana, written in Paris in April,
1912, Madame Cama says, “Further I hope that, as
explained at some length by me to you in writing, you
will kindly now resume paying 100 francs every
month, because I am obliged to send every month to
Freeman and Aiyar 100 francs.” There is not the
slightest doubt that this refers to George Freeman and
V.V.S. Aiyar; in the original it was not clear
whether it meant 100 francs each or 100 francs
between the two, but the point was afterwards
elucidated and it was found that 50 francs a month
were sent to each. (to be continued)
*****
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 JUDICIAL REVIEW IN INDIA
{A Study in Constitutional Theory and Judicial Practice}
Chapter IV:
DISTRIBUTION OF
LEGISLATIVE POWER
i) THE DOCTRINE OF ULTRA VIRES:
I.
Non-obstante Clause and State Powers:
THE DOCTRINE OF PITH AND SUBSTANCE:
In Subramanyan Chettiar v. Muthuswami
Goundan69 The Madras Agriculturists Relief Act
was challenged. In defence of the Act, the Madras
Government argued that it was legislation with
respect to money-lending, a provincial matter and
so perfectly intra vires. The Attorney General of
India, for the opposite party, conceding this
point,70 contended that the Act also affected
promissory notes – which could only be dealt
with by the Federal Legislature71 and hence the
non-obstante clause rendered the state law ultra
vires. The Federal Court saved the state law.
Their Lordships said: “It is clear that the pith and
substance of the Madras Act, whatever it may be,
cannot at any rate be said to be legislation with
respect to negotiable instruments or promissory
notes and it seems to me quite immaterial that
many or even most of the debts with which it
deals are in practice evidenced or based upon
such instruments. This is an accidental
circumstance which cannot affect the question.”72
Thus the doctrine of “Pith and substance” was
applied to test whether the legislation was proper to the
sphere allotted and after ascertaining this fact, casual
encroachment on the forbidden field was condoned.
♣
Continued from Law Animated World, 15 February2018
issue; photos and emphases in bold ours - IMS.
69
AIR 1941 FC 47, also reported in FLJ 1940 at 157.
70
Ibid. (AIR 1941 FC 47 at pp. 190-191).
71
Under item 27 of List I of the Government of India Act,
1935.
72
Subramanyan Chettiar v. Muthuswami, AIR 1941 FC 47
at p. 51; also (1940) FLJ 157.
7 Law Animated World, 28 February 2018
- Prof. R.V.R. Chandrasekhara Rao♣
The Federal Court thus pronounced its approval
of the applicability of the test of “pith and
substance” in Indian Constitutional Law. In so
doing it approved the Madras High Court’s
decision in Mada Nagabhushanam v. Puvvada
Seshayya73, wherein the test was applied, and
rejected the Patna High Court decision in
Sagarmal v. Buthu Ram74, where the Court refused
to apply the test.
To the Patna High Court, the presence of the
non obstante clause in Section 100 of the
Government of India Act 1935 was conclusive of
the fact that the ‘pith and substance’ test as
applied in Canada could not be applied in India.
In the words of a learned Judge of that Court: “If
I may say so with the greatest respect, the
application of this principle by analogy from the
Canadian and Irish cases, to the case of the
Government of India Act 1935 seems to me to
ignore the provisions of the Section 100 of that
Act, which make the powers of the provincial
legislatures expressly subject to the powers of the
Federal Legislatures and give exclusive powers to
the Federal Legislature notwithstanding any
powers given to the provincial legislatures.”75
But their Lordships in the Federal Court
presided over by Sir Maurice Gwyer, one of India’s
most brilliant Chief Justices, rejected this so-called
difference in Indian and Canadaian statutes, due to the
presence of the non-obstante clause in the Government
of India Act. In his judgment, Sir Maurice Gwyer
showed the analogy to be complete and that “As
interpreted by the Judicial Committee, the British
North America Act presents an exact analogy to
the India Act, even to the overriding provisions to
the Section 100(1) of the latter”76 (the reference is
73
ILR 1939 Mad. 151.
74
(1940) FLJ 119.
75
Ibid., at pp. 129-130.
76
Subramanyan v. Muthuswami, AIR 1941 FC 47 at p. 50;
also (1940) FLJ 157 at p. 165.
8 Judicial Review in India (R.V.R. Chandrasekhara Rao)
to the non-obstante clause) It will be seen that the
“pith and substance” test was used to ward off the
operation of the non-obstante clause.
This case, while establishing the test and after
determining the validity of a statute through the
test – allowed the Madras Act to deal with
promissory notes, though the subject came within
the Central field, for it was only an incidental
encroachment. But in this case the issue involved
was not a claim under a promissory note, for the
claim had already merged into a claim under a
decree. So the rights of the parties to the case,
were not centred round claims under promissory
notes. We shall examine cases, where the issue
involved was dependent upon the effect of
provincial legislation touching promissory notes.
The Bengal Moneylenders Act, which
specifically sought to scale down debts on
promissory notes was invalidated.77 But in this
instance also the debt that was claimed passed
into a claim under a Court decree and hence, the
decision in Subramanyan v. Muthuswami78 was
applied.
In Bank of Commerce v. Kunja Behari79,
wherein, again the Bengal Moneylenders Act was
impugned, the issue of a debt claimed under a
promissory note was directly in question and so
the Federal Court came to grips with the issue,
whether the Act was valid in purporting to scale
down debts on promissory notes. And the learned
Judges, referring to the competence of the
provincial legislature to effect promissory notes,
even incidentally, stated the problem: “The
decision of these appeals will therefore depend
upon the determination of the question whether the
provisions of the impugned Act encroach upon List I
subjects to any substantive extent, whether the
interference is only incidental in the sense above
explained.” And holding the encroachment to be
substantive, the Act was held ultra vires the provincial
legislature.
77
Bank of Commerce v. Amulya Krishna, AIR 1944 FC 18.
78
AIR 1941 FC 47 = (1940) FLJ 157.
79
AIR 1945 FC 2 at pp. 3-4. = Bank of Commerce, Ltd., Khulna
v. Kunja Behari Kar (1945) 1 M.L.J. 24
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Thus the Federal Court set a limit to the
permissibility of incidental encroachment, which
was recognized in Subramanya v. Muthuswami.80
Substantive encroachment was disallowed. This
innovation of the test of degree of
encroachment81 was rejected by the Judicial
Committee of the Privy Council when the Bengal
Act case went on appeal to that Board. This was
the famous case of Prafulla Kumar Mukherjee v.
Bank of Commerce, Khulna.82 In holding the
Bengal Money Lenders Act intra vires in its
entirety, their Lordships applied the following
tests in arriving at their decision:
“1. Does the Act in question deal in ‘pith and
substance’ with money lending?
2. If it does, is it valid though it incidentally
trenches upon matters reserved for the
federal legislature?
3. Once it is determined whether the pith and
substance is money lending, is the extent to
which the federal field is invaded a
material matter?”83
They answered the first two questions in the
affirmative and the last in the negative.
In Kishori v. The King84, while holding the
provinces’ power to legislate on prohibition as
not being restricted by the Centre’s power over
“Exports and imports across customs frontier,”
the Court recognized that, while no doubt the
revenues on Customs might be affected due to the
provincial enactment, this did not invalidate the
Prohibition Act, for in “pith and substance” it was a
provincial law.85
80
AIR 1941 FC 47.
81
As we shall examine later (see page …… of this Chapter)
this amounted to an attempt to distinguish the tests of
‘pith and substance’ and ‘ancillary encroachment’ –
which the Privy Council rejected.
82
Law Reports, Indian Appeals (1946-47), p. 23.
83
Ibid.
84
AIR 1950 FC 69.
85
Also, Darshan Singh v. State of Punjab, AIR 1953 SC 83,
followed by Kishori v. The King, AIR 1950 FC 69.
(2018) 1 LAW Judicial Review in India (R.V.R. Chandrasekhara Rao)
The case of Prafulla Kumar Mukherjee v. Bank
of Commerce, Khulna86 marks the high watermark
of judicial liberalism in construing the respective
powers of Indian Legislatures. For here we see a
provincial enactment, which purported to legislate on
matters on the Federal List (of course, incidentally)
being validated. The twin principles invoked to offset
the role of the non obstante clause were ‘pith and
substance’ and ‘incidental encroachment’.
That case is a landmark even on a more
general plane. In it the Privy Council answered
most of the relevant questions on the
interpretation of Section 100 of the Government
of India Act 1935 (Article 246 of the current
Constitution of India). Counsel for the
respondents argued that under a correct
construction of Section 100, “the dominant point
is that the subjects in List I cannot be infringed on
at all by the provincial legislature, which cannot
legislate on promissory notes and banking
because those are exclusively reserved for the
Federal Legislature.”87 In short, Counsel wanted a
technical or literal construction of the non-
obstante clause of the section.
Their Lordships replied: “No doubt were they
come in conflict, List I has priority over lists III
and II and List III has priority over List II, but the
question will remain priority in what respect? Does
the priority of Federal Legislature prevent the
provincial legislature from dealing with any
matter which may incidentally affect any item in
its List or in each case has one to consider what
the substance of an Act is an, whatever its
ancillary effect, attribute it to the appropriate list
according to its true character?”88 A liberal
construction was thus stamped on Section 100.
86
Law Reports, Ind. App. (1946-47) at 23.
87
Ibid., at p. 32. Arguments of Sir Herbert Cunliffe, K.C.
88
Ibid., at p. 44 infra. The last three paras of the judgment:
“…true character? In their Lordships' opinion the later
[sic – latter] is the true view. If this be correct it is
unnecessary to determine whether the jurisdiction as to
promissory notes given to the Federal legislature is or is
not confined to negotiability. The Bengal Money Lenders
Act is valid because it deals in pith and substance
with money lending, not because legislation in respect of
9
9
It must be noted that though determination of
“pith and substance” is conclusive of the vires of
legislation, the determination itself is not totally
independent of the extent of encroachment that a
provincial law may make on the federal field. In
the words of the Judicial Committee: “…the
extent of the invasion by the provinces into
subjects enumerated in the Federal List has to be
considered. No doubt it is an important matter,
not as their Lordships think, because the validity
of an Act can be determined by discriminating
between degrees of invasion but for the purpose
of determining what is the ‘pith and substance’ of
the impugned Act.”89
The Privy Council itself in 1943 in a Canadian
case invalidated a provincial “Debt Adjustment Act”
on the grounds that it made a “serious and substantial
invasion” of the Dominion filed relating to
“bankruptcy and insolvency” which made the action
a “pith and substance” one in relation to “bankruptcy
and insolvency” and hence ultra vires the provincial
legislature.90
Promissory notes by the Federal legislature is confined to
legislation affecting their negotiability a matter as to which
their Lordships express no opinion.
It will be observed that in considering the principles
involved their Lordships have dealt mainly with the
alleged invalidity of the Act, based on its invasion of the
Federal entry, "promissory notes", item (27.) in List 1.
They have taken this course because the case "Was so
argued in the courts in India, but the same considerations
apply in the case of banking. Whether it be urged that the
Act trenches on the Federal List by making regulations
for banking or promissory notes, it is still an answer that
neither of those matters is its substance, and this view is
supported by its provisions exempting scheduled and
notified banks from compliance with its requirements.
In the result their Lordships are of opinion that the Act is
not void either in whole or in part as being ultra vires the
Provincial legislature. This opinion renders it
unnecessary to pronounce on the effect of the Ordinance
No. XI of 1945, purporting to validate, inter alia, the
impugned Act, and their Lordships express no opinion
on it. But having regard to their views expressed in this
judgment they will humbly advise His Majesty that the
appeal be allowed. The respondent must bear the costs
throughout.”
89
Ibid., at p. 43 infra.
90
A.G. for Alberta v. A.G. for Canada, (1943) A.C. 356.
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10 Judicial Review in India (R.V.R. Chandrasekhara Rao)
The Federal Court in a later case,91 following
the directions of the Privy Council, examined the
extent of invasion into the federal field by a
provincial law and held it to be “not so great in
the present case as to justify the view that in
‘pith and substance’ the impugned tax is a tax on
income (which only Federal Legislature could levy).”
We have seen how states’ powers are given
enough scope to operate, free from invalidation
by the non-obstante clause. The doctrine of “pith
and substance” is thus a very important one.
“ASPECT” TEST IN INDIA:
A test similar to the test of “pith and
substance” is the test of “aspect of legislation”, to
determine the vires of legislation. In the words of
Lefroy92, “It seems quite possible that a particular
91
Ralla Ram v. The Province of East Punjab, (1948) FCR 207
at p. 227. To quote the last paragraph of this judgment –
“…true that in all these pronouncements, the real
emphasis is laid on the necessity of ascertaining the pith
and substance, but they also contain useful guidance as to
how the Courts should proceed when they have to deal
with two apparently conflicting enactments. The
conclusion we have arrived at is that in substance the
impugned tax is not a tax on income, that it is not
impossible to reconcile the seeming conflict between the
provisions of the two Acts, and that the extent of the alleged
invasion by the Provincial Legislature into the field of the
Federal Legislature is not so great in the present case as to
justify the view that in pith and substance the impugned
tax is a tax on income. In our opinion, therefore, the
appeal must fail, and it is dismissed with costs to the East
Punjab Government, the respondent in the appeal.”
92
Lefroy, Treatise on Canadian Constitutional Law, p. 80.
“…subjects, which in one aspect and for one purpose fall
within the provincial powers of section 92 of the Federation
Act, may, in another aspect and for another purpose, fall
within sec. 91; and when the Federal parliament is
legislating upon one of the subjects enumerated in sec. 91,
there is no restriction upon its passing an Act which shall
affect one part of the Dominion only ; consequently it
seems quite possible that a particular Act, regarded from
one aspect, might be intra vires of a provincial legislature,
and yet, regarded from another aspect, might be also intra
vires of the Dominion parliament. In other words what is
properly to be called the subject-matter of an Act may
depend upon what is the true aspect of the Act.84 At any
rate it certainly must not be supposed that the Federal
parliament and the provincial legislatures can, for no
purpose whatever, or under no circumstances whatever,
legislate in relation to the same matter. Thus the fact that
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Act regarded from one aspect, might be intra
vires of a provincial legislature and yet from
another aspect might also be intra vires of the
Dominion Parliament. In other words, what is
properly called, the subject matter of an Act
depends upon what is the true aspect of the Act.”
So, the true purpose of the Act should be
ascertained in order to find out whether the
effectuation of such a purpose is within the
competence of the enacting legislature. This is
quite similar to finding out the true nature and
character of the Act, its “pith and substance.”93
Canadian cases also show that the two tests are
identical. In Russell v. Queen94 the Privy Council
said: “the true nature and character of the
legislation in the particular instances under
discussion must always be determined, in order to
ascertain the class of subjects to which it really
belongs” – this applied the “pith and substance”
rule. Whereas in Hodge v. Queen95 the Privy
Council held that “the principle which that case
[referring to Russell v. Queen] and the case of
Citizens Insurance Co. illustrate is that subjects
[which] in one aspect and for one purpose fall
within Section 92, may in another aspect and for
another purpose fall within Section 91.”96 But
some constitutionalists point out a distinction
between the two doctrines of “aspect” and
“ancillary” encroachment. Indeed the application
the former can declare a thing a crime, will not, it would
seem, exclude the powers of a province to deal with the
same thing in its civil aspect, and impose sanctions for the
observance of the law, as, e.g., in the matter of providing
against frauds in the supplying of milk to cheese factories.
And where federal legislation is under the residuary
Dominion power, and not under any of the enumerated
Dominion powers, it by no means follows that a provincial
legislature cannot make a local law of a similar character, as
is well illustrated by the various cases upon temperance
legislation...” {AH.F. Lefroy, A Short Treatise on
Canadian Constitutional Law, Toronto, 1918, pp. 80-
81}.
93
Basu, Commentary on the Constitution of India, Vol. II,
p. 228.
94
(1882) App. Cas. 829.
95
(1883) App. Cas. 117.
96
Ibid., at p. 130 “pith and substance” was applied.
10
(2018) 1 LAW Judicial Review in India (R.V.R. Chandrasekhara Rao)
of those two doctrines by the Judicial Committee,
to Canadian Cases also suggests that such a
distinction was made.97 Basing his conclusions on
such decisions Prof. Vincent MacDonald98 says:
“The distinction between the “aspect” and
“ancillary” doctrines is that under the former the
provision in question is validity within the scope
of an enumerated Dominion power, the only
peculiarity being that, from some other aspect or
for some other purpose similar legislation might
also be enacted by a province; While, under the
latter doctrine, the provision in question is
invalid “per se” as being legislation within an
exclusive provincial head but in its particular
context it derives validity because of its necessity
to effective legislation under an admitted
Dominion head.”99
Prof. Laskin denies that there is any difference
between the doctrines and protests:
To make what can only be an artificial
distinction between those provisions of a federal
enactment which are strictly in a federal aspect
and those necessarily incidental to the effective
operation of the legislation, is to trifle with
legislative objects and with the draftsman’s
efforts to realize them.”100
Clement also expresses the same view in his
book.101
The present issue can be approached in the
following way. To know on which aspect of a
matter a legislature is legislating, the extent of
97
Cf. Bora Laskin: Canadian Constitutional Law, pp. 51-
52; also, Bora Laskin: Peace, Order and Good
Government: Re-Examined, article in 25 “Canadian Bar
Review,” 1054. // Bora Laskin, PC CC FRSC {b: 5
October 1912: d: 26 March 1984} was a Canadian lawyer,
academic and judge; served on the Supreme Court of
Canada for fourteen years, including a decade as the 14th
Chief Justice of Canada. [Wikipedia]
98
Vincent MacDonald: Judicial Interpretation of the
Canadian Constitution, Article 1, University of Toronto
Law Journal, 260.
99
Ibid., at 274, foot note.
100
Bora Laskin: Peace, Order and Good Government: Re-
Examined, article in 25 “Canadian Bar Review,” 1054 at
1061.
101
Clement, Canadian Constitution, p. 506.
11
11
encroachment should be carefully considered.
Thus the ‘pith and substance’ doctrine may say
that in determining the ‘pith and substance’ the
extent of encroachment is irrelevant,102 but it still
remains a question of how to determine the ‘pith
and substance’. So also, the distinction which
Prof. MacDonald makes, between “ancillary
encroachment” and “aspect” theories still leaves
out the issue of how to determine whether the
legislature is legislating in the aspect that would
render the statute intra vires.
In Bank of Commerce v. Amulya Krishna,103 a
provincial enactment was upheld through the
“aspect” test but the same statute was invalidated
in Bank of Commerce v. Kunja Behan,104 on the
ground that substantive encroachment was made
on the Central sphere, though the Act might be in
“pith and substance” a provincial law. Here we
find an attitude of treating the test of encroachment
and the test of “pith and substance” as two different
tests.
The judgment of the Privy Council, on appeal,
in Prafulla Kumar Mukharjee v. Bank of Khulna,105
as we have seen, is very instructive in this
instance also. While holding that, once the ‘pith
and substance’ is determined the degree of
encroachment is irrelevant, their Lordships still
agreed that the degree of encroachment is in itself
material in determining the ‘pith and substance’.
Thus, the decision denies the distinction between
the “incidental encroachment” test and the “pith
and substance” test which the Federal Court, in
effect, drew.106 In short, both the tests are applied
together, i.e., the ‘encroachment test’ to
determine the ‘pith and substance’ and the latter
to determine the ‘vires’ of the legislation. Thus,
the distinction which we observe in Canadian
law, as pointed out by Laskin, was avoided in
Indina law.
102
Prafulla Kumar Mukharjee v. Bank of Commerce, Khulna,
L.R. Ind. App. (1946-47), 23.
103
AIR 1944 FC 18.
104
AIR 1945 FC 2
105
L.R. Ind. App. (1946-47), 23.
106
Bank of Commerce v. Kunja Behan, AIR 1945 FC 2.
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12 Judicial Review in India (R.V.R. Chandrasekhara Rao)
Prof. Clement also points out how the two
tests, in effect, are supplementary when he says,
“In the absence of direct authority it can only be
suggested that the various cases in which the so-
called ancillary legislation has been upheld are
cases in which the enactment in controversy dealt
with an aspect of the subject upon which
provincial legislation would have been
incompetent...”107
Once again in State of Bombay v. Narottam
Das, the Supreme Court of India referred to the
“aspect” doctrine, but Patanjali Sastry J. (as he
then was) identified it with the ‘pith and
substance’ doctrine. Thus, the tendency to
attribute sharp distinctions to these two doctrines
(the ‘aspect’ and the ‘ancillary encroachment’)
seems to be rather academic and unsound. For, in
dealing with the ‘aspect’ and ‘purpose’ of
legislation, the difficulty in determining the vires
of legislation with the help of any one test, should
be realised. As Prof. Clement observes: “In order
to determine the class to which a particular
enactment really belongs, the primary matter
dealt with by it, its subject matter and legislative
character, the true nature and character of
legislation, its leading feature, its ‘pith and
substance’ must be determined.”108
The tests of ‘pith and substance’ or ‘aspect of
legislation’ determine the vires of legislation and
in India as well as in Canada the rigour of the
non-obstante clause is thus softened. But still, the
fact remains that, state laws may encroach upon
federal subjects, on which the Federal Legislature
may legislate.
What, then, would be the fate of a provincial
enactment? Here arises the importance of the
doctrine of the “occupied field” as evolved in
Canadian Constitutional practice.
DOCTRINE OF THE OCCUPIED FIELD:
No doubt, in Canada, Dominion Legislation is
permitted to encroach on the provincial field
107
Clement: “Law of the Canadian Constitution,” p. 506.
108
(1951) SCR 51.
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because of the paramount nature of Section 91 of
the British North America Act.
But the Judicial Committee and Canadian
Supreme Court never interpreted this Dominion
paramountcy so rigidly, as to deny any incidental
touching of a provincial law on a Federal matter.
Though a province cannot legislate on any federal
matter, it is recognised “that whatever powers the
provincial legislatures have, as included within
the enumerated subject matters of Section 92,
when properly understood, those powers they
may exercise, although in doing so they may
incidentally touch or affect something which
might otherwise be held to come within the
exclusive jurisdiction of the Dominion Parliament
under some subject matter enumerated in Section
91.”109 Thus in Attorney General for Ontario v.
Attorney General for Canada110, the Provincial
Voluntary Assignments Act was upheld, even
though the Act touched on a federal matter
(‘bankruptcy matters’). At the same time the
Board warned that “Their Lordships do not doubt
that it would be open to the Dominion Parliament
to deal with such matters as parts of a bankruptcy
law, and the provincial legislature would
doubtless be then precluded from interfering with
this legislation inasmuch as such interference
would affect the bankruptcy law of the Dominion
Parliament.”111
Thus, we see a provincial enactment upheld
but the theory of the “occupied field” was
imposed as a limitation upon such provincial
encroachment.
In 1939, in Ladore v. Bennet,112 a provincial
statute, which purported to deal with
“municipalities”113 and provided for steps to be
taken in the event of such municipalities being
financially in default, was upheld. The argument
that the Act was ultra vires as legislating on
109
Ibid.
110
(1894) App. Cas. 189.
111
Ibid.
112
1939, App. Cas. 468.
113
“Municipalities” included under provincial list items.
(2018) 1 LAW Judicial Review in India (R.V.R. Chandrasekhara Rao)
“insolvency” (a federal subject) was rejected by
the Board. In 1943 – both:
(a) The permissibility of incidental
encroachment into the federal field, and
(b) its limitation when a federal law already
occupied the field,
were reiterated by the Judicial Committee, in
Attorney General for Alberta v. Attorney General
for Canada.114 Their Lordships observed, “Since
1894, it has been a settled proposition that if a
subject of legislation by the province is only
incidental or ancillary to one of the classes of
subjects enumerated in section 91 and is properly
within one of the subjects enumerated in section
92, then such legislation by the province is
competent unless and until the Dominion Parliament
chooses to occupy the field by legislation.”115
This embodies the doctrine of “occupied
field”.116
In Australia we have a parallel to this doctrine
in the doctrine of “covering the field” – but that
doctrine comes under consideration in connection
with the theory of “repugnancy”.117
In India, the Calcutta High Court118 first
quoted with approval the Canadian decision in
Grand Trunk Railway of Canada v. Attorney
General of Canada.119
In that case also the Privy Council referred to
the “occupied field” theory.120
114
1943 App. Cas. 356.
115
(1943) App. Cas. 356 at p. 370.
116
Cf. Laskin: Canadian Constitutional Law, pp. 51-52.
117
The doctrine in Australia concerns jurisdictions over a
concurrent field. (cf. next Chapter).
118
AIR 1939 Cal 628 at pp. 633-634.
119
(1907) App. Cas. 65.
120
In Grand Trunk Railway of Canada v. Attorney General of
Canada, the Board said: (1907) AC 650
“There can be a domain in which provincial and
Dominion legislation amy overlap in which case
neither legislation will be ultra vires, if the field is
clear, but if the field is not clear and in such a domain
the two legislations meet, then the the Dominion
legislation must prevail” – at p. 68.
13
13
Justice Sulaiman, J., in his opinion in
Subramanya v. Muthuswamy,121 recommended
the doctrine for the purpose of Indian
constitutional interpretation. He said, while
interpreting section 100 of the Government of
India Act 1935, “Engrafted upon the doctrine of
incidental encroachment there is the further
doctrine of unoccupied field.”122
In that case Gwyer C.J. also voiced the view
that a provincial law encroaching into federal
fields would only be valid until a federal law
occupied the field. The Privy Council expressed
no opinion on the doctrine in the authoritative
case of Prafulla Kumar Mukherjee v. Bank of
Khulna,123 though the subject was broached
during the argument.
It appears that the doctrine’s applicability is
obvious.
In trying to save state laws from invalidity that
might be caused by the non-obstante clause, we
have seen that a two-fold path has been followed.
Firstly, interpreting the items in the lists in a way
that delimits their respective spheres, (keep them
from coalescing), e.g. – differentiating between
sales tax and excise tax as two exclusive entities,
which can be levied on the same person, but
distinctly as a manufacturer and as a seller.124 The
second method is by allowing incidental
encroachment. Thus, if a state law touches on
matters relating to the federal list, on a strict
interpretation of Article 246, the state law is
invalid for the words “subject to,” which occur in
Cl. 3 of Art. 246, make the provincial legislature
lose its competence, even over matters in its list,
if they overlap with central subjects. But this
rigour was tempered by the Court, through the
doctrine of incidental encroachment, when the
Court validated such laws despite overlapping.
121
AIR 1941 FC 47 at p. 59 & 62.
122
Ibid., at p. 62.
123
L.R., Ind. App. (1945-46), 23.
124
In re C.P. Motor Spirits Act, AIR 1939 FC 1 and Mada
Nagabhushanam v. Puvvada Sheshayya, (1939) ILR Mad
151.
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14 Judicial Review in India (R.V.R. Chandrasekhara Rao)
That if such an incidental encroachment, not
merely relates to a matter in the federal list, but
actually clashes with a federal law? In the words
of Sulaiman, J.125 “Could a trespass as well as a
clash with federal matters be allowed?” An
illustration will clarify the point.
The two cases – Mulchand v. Raman Shah126,
and State of Bombay v. Narottam Das127, which
we have examined before, serve us well now. In
these cases the provinces’ right to legislate over
‘administration of justice’ was upheld in the face
of the exclusive right of the Central Legislature to
confer jurisdiction on courts with respects to
matters in its own List. The Courts held that the
latter power was a power to confer special
jurisdiction if the Parliament so chooses, and this
in no way limited the general power of the
province to administer justice. Hence, if the
Central Legislature chooses to confer jurisdiction
(by exercising its special power) on Courts with
respect to “promissory notes” (a federal item),
then the Bombay City Civil Courts Act, which
endowed the Courts with jurisdiction over all
cases of a civil nature cannot be held intra vires to
the extent of jurisdiction over cases arising under
“promissory notes”. The field is occupied by
Federal Legislation.
Thus the doctrine of the “occupied field” applies to
India also.
On examination we find that in interpreting the
non obstante clause and “subject to” phrase of
Article 246, the Courts instead of making the
provincial legislatures incompetent to legislate on
matters overlapping with the federal sphere
(which would be ther result of the technical
interpretation of Article 246), permit the
provincial laws to do so, but only invalidate them
in case of a clash with a federal law in that field.
In short, while the words “notwithstanding” and
“subject to” in Article 246, strictly speaking
suggest the doctrine of ultra vires, the Courts
125
Subramanyan v. Muthuswami, AIR 1941 FC 47.
126
AIR 1949 Bom 197.
127
1951 SCR 51.
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tempered it to mean the doctrine of
“repugnancy”.
That the intention of Sulaiman, J., in
Subramanyam v. Muthuswami,128 was to import
the doctrine of “repugnancy”, even in cases
involving interepretation of Cls. (1) and (3) of
Section 100 of the Government of India Act
(wherein the doctrine of ultra vires prevails) was
made clear by the observation of the Chief Justice
Spens in Bank of Commerce v. Kunja Behari.129
In that case, dealing with the problem whether a
provincial law encroaching on a Federal subject
should be held Ultra vires (on a strict
interpretation of Section 100) or should be held
void for “inconsistency with a federal enactment
(i.e. the doctrine of “repugnancy”), Spens C.J.,
referred to Justice Sulaiman’s judgment in
Subramanyam v. Muthuswami and observed,
“Sulaiman J. went into it at some length and
was of the opinion that the question shall be
decided by the application of the test of
repugnancy as there was some difficulty in
bringing the case within the language of
Section 107,130 Constitution Act, the learned
Judge held that the same result must be
reached by the application of what has been
described as the “doctrine of occupied field” in
cases decided under the Br. North America
Act.”131
Such an importaton of the doctrine of
“repugnancy”, when interpreting Section 100,
was contested by Counsel for the respondents in
Prafulla v. Bank of Commerce.132 Pleading that
the doctrine was relevant to cases coming under
Section 107 only, the learned Counsel observed
“there cannot be repugnancy between nothing and
128
AIR 1941 FC 47.
129
AIR 1945 FC 2.
130
Section 107 of the Government of India Act deals with
“repugnancy between Central and Provincial laws on
concurrent subjects.”
131
Bank of Commerce v. Kimja Behari, AIR 1945 FC 2 at
3-4. Bank of Commerce Ltd. v. Kunja Behari Kar &
Upendra Chandra Kar, [1944] F.C.R. 370.
132
L.R. Ind. App. (1946-47), 23.
(2018) 1 LAW Judicial Review in India (R.V.R. Chandrasekhara Rao)
something positive,”133 thereby meaning that a
provincial law encroaching on a federal field
should fall for it was ultra vires and did not exist
and hence that no mention of “repugnancy” arose.
Counsel denied the applicability of the doctrine
of the “occupied field”. But their Lordships on
the Committee did not decide this point though
they upheld the provincial statute concerned.
The non obstante clause in Article 246 of the present
Constitution is thus limited in its operation, by the
permissibility of incidental encroachment by provincial
laws, which would only be void in the event of a
clash with an existing or future federal enactment.
PITH AND SUBSTANCE – TEST –
WHEN APPLICABLE?
The doctrine of “pith and substance” thus plays the
major role in the interpretation of the distribution of
legislative powers in the Indian Constitution. The
decision of the Indian Supreme Court in Rex v.
Basudwa134 involved the question as to the
application of the doctrine. In that case the Court
held that the test could only be applied when
competition between the two lists is involved.
The U.P. Prevention of Black Marketing Act
was held Ultra vires because black marketing
only remotely affected public order, with regard
to which alone a province could pass a preventive
detention law.135 The Allahabad High Court,
invalidating the law, applied this test. But the
Federal Court, while sustaining the decision,
admonished the High Court for applying the test of
“pith and substance” because in this case there was
no issue as to competition between two lists to which the
subject matter of the legislation belonged.
“Pith and substance” is useful to test whether
the true nature and character of a statute is with
respect to a subject within the competence of the
enacting legislature or not. It need not always be
accompanied by an invasion into another
enumerated field? May be a state law digresses
from its field and encroaches upon the “residuary
133
Ibid.
134
(1950) SCJ 47.
135
Ibid.
15
15
field”136. In such cases also “pith and substance”
could be resorted to, to test whether despite the
digression, in “pith and substance” the enactment
is in respect to a provincial matter. In other
words, the test is not only applicable to determine
whether a legislation is with respect to a subject
in one list or another – but it may also be used to
determine whether the subject of legislation is
within a given list or not.
Thus in Callagher v. Lynn137 where the test
was applied, the issue involved was not whether
the subject of legislation was within one
legislative list or another. It was simply whether a
legislature was legislating within its sphere of
competence.
Even in Australia, wherein the Commonwealth
of Australia Act there is only one enumeration of
legislative powers, this doctrine has, in some
cases, been made use of to determine the vires of
legislation.138
Hence, there appears to be no reason why the
“pith and substance” doctrine should not be used
in cases where a legislature is alleged to overstep
its limits, though the issue of invasion into
another enumerated field is not involved.
By the doctrine of “pith and substance” overt
acts exceeding competence could be checked. But
what about disguised legislation wherein a
legislature professing to deal with a subject over
which it has jurisdiction, deals actually with
things outside? Here we arrive at the doctrine of
“Colourable legislation”.
COLOURABLE LEGISLATION:
This doctrine also, in effect, tests vires of
legislation, when any legislative body seeks to
circumvent constitutional restrictions by a
136
Residuary power is vested in the Parliament under the
present Constitution (Article 248).
137
(1937) A.C. 863.
138
Huddart Parker Ltd. v. The Commonwealth, (1931) 44
CLR 492. Section 3 of the Transport Workers Act 1928-
29 was upheld as a law with respect to trade and
commerce with other countries and among the states.
The words “pith and substance” were not used.
Law Animated World, 28 February 2018
16 Judicial Review in India (R.V.R. Chandrasekhara Rao)
colourable device. This has been applied in
American, Canadian and Australian practice. By
this a legislature cannot “under the guise or the
pretence or in the form of an exercise of its own
powers, carry out an object which is beyond its
powers.”139
In India, applying this doctrine, the Supreme
Court invalidated the Bihar Land Reforms Act,
wherein purported reliance on the power to
legislate on “principles on which compensation is
to be determined and the form in which
compensation is to be given,”140 the Act virtually
avoided payment of compensation.141 The
decision in Gajapathi v. State of Orissa,142 was
based on the same doctrine. Needless to say,
Federal enactments are not excepted from this
objection.
It must be remembered that the interpretation of
the provisions relating to the distribution of powers, was
strongly influenced by the interpretation of its
Canadian counterpart. The Privy Council’s
attempts at saving provincial legislation from the
paramount nature of Dominion powers under
Section 91 of the B.N.A. Act, can systematically
be traced through a series of decisions. To some
of these, we have already referred in different
contexts. The doctrine of pith and substance and
incidental encroachment, and the “occupied field”
theory were all evolved in the interpretation of that
document. The Privy Council itself was responsible for
interpreting the Government of India Act 1935, the
forerunner of the present Constitution.
Both the British Parliament and the Indian
Constituent Assembly were well aware of the
judicial interpretation which would be accorded
to their enactments and hence even when Section
100 of the Government of India Act 1935 and
Article 246 of the Constitution were enacted,
what the legislatures intended them to be, could
reasonably be guessed. The Privy Council, the
139
AG for Alberta v. AG for Canada, (1939) App. Cas. 117
at 130.
140
Item 42 of List III.
141
Kameshwar Singh v. State of Bihar, AIR 1951 SC at p. 91.
142
AIR 1953 SC 375.
Law Animated World, 28 February 2018
16
(2018) 1 LAW
Federal Court of India and the present Supreme
Court of India, ably assisted by the various Indian
High Courts precisely interpreted the provisions
relating to the distribution of powers. Yet, it is
not going too far to say that the Privy Council
championed the powers of the provinces, and
tried to preserve the autonomy of the provinces in
interpreting the 1935 Act. The case of Prafulla
Kumar Mukherjee v. Bank of Commerce, Khulna143
is a good example. An awareness that under a
Constitution like the 1935 Act, wherein the
Central power was dominant, the only way to keep
the spirit of federalism was to construe the provincial
powers liberally, was responsible for the judicial
attitude that was shown.
It must be made clear that the Judiciary,
generally, did not extend or stretch rules of judicial
construction too far in order to uphold state
legislation.144 Thus when a province enacted a law
on preventive detention to curb black marketing,
the Federal Court invalidated law, for the
province had no such power.145 So also a “fraud on
the Constitution” through colorable legislation was not
excused.146 The Judiciary’s anxiety to preserve state
powers, cannot therefore be compared with the
American Supreme Court’s defence of state rights
under the theory of “Dual Federalism.” In the latter
case the Supreme Court almost played the role of
Counsel for the states. Equally erroneous would
be a comparison with the American Court’s
championing of vested rights in interpreting the
“contract clause” and “the process clause” of the
Fifth and Fourteenth Amendments. In these cases,
granted the American people’s belief in the ‘bona
fides’ of hte Court’s views, it cannot be denied
that the Court assumed the role of a defender of a
cause, rather than the role of interpreter of an
organic instrument. [END of Chapter IV]
*****
143
L.R. Ind. App. (1946-47), 23.
144
In some cases the Judiciary did stretch the rules, Cf.
Conclusion, pp. 462-465.
145
Rex v. Basudwa, (1950) SCJ 47.
146
Kameshwar Singh v. The State of Bihar, AIR 1951 Pat 91.
Towards Totalitarianism:
AADHAAR : A Grand Conspiracy
Making Aadhaar mandatory will make a
mockery of the basic constitutional concept of
"We the People". From a democracy for the
people, by the people and of the people, India will
be converted into a nation where all citizens will
be tethered to an electronic leash over which the
State will have absolute control.
This is the terrifying portrait that was painted by
Shyam Divan, the counsel for the anti-Aadhaar
petitioners, before the Constitutional Bench of the
Supreme Court, during the final hearings which
began January 17.
The full horror of mandatory Aadhaar in all its
dimensions was described with such clinical clarity and
legal lucidity that even those who have till now
been ambivalent and unconcerned about the
dangers of imposing a nationwide technology-
driven data base of bio-metric identification of all
citizens, would have begun to pause and ponder.
It is not just the starry notion of protecting privacy that
is at stake. It is the Constitution of India that is being
sought to be defaced, defiled and derailed. This was
the thrust of Shyam Divan's arguments.
Many legal luminaries are of the opinion that
the five judges on the Bench – as the ultimate
guardians of the Constitution – would now be
compelled to examine every strand of the analysis
presented to them more closely and more
cautiously, before passing judgment in the case.
In other words, the petitioners' counsel seems
to have succeeded in his attempt to elevate the
case to a higher plane by projecting Aadhaar as
not just another governmental programme but a
devious and diabolical conspiracy by the Modi
government1 to wrest control of the levers of power
over the country and its people by overturning the
Constitution itself.
♣
Courtesy: Raman Swamy in Frontier, Vol. 50, No. 34,
25-02-2018; edited/abridged; emphases in bold ours - IMS.
1
The Aadhaar Scheme was started not by Modi
Government but by the previous UPA Government under
Dr. Manmoan Singh, with the Bill also introduced in the
Parliament under his regime, at that time criticized by
Modi in Opposition, but now passed arbitrarily as a
Money Bill by the Modi Government. - IMS.
17
- Raman Swamy♣
At its core, Aadhaar is clearly aimed at utterly
altering the relationship between the citizen and
the State. Without any doubt, it diminished the
status of the citizen and drastically dis-empowers
the common man.
Rights that till now have been freely exercised,
liberties that have been freely enjoyed,
entitlements that have been granted and
guaranteed by the Constitution, would all be made
conditional. Worse, that conditionality would be based
on a compulsory barter. A barter that compels the
citizen to give up his or her biometrics
'voluntarily', allow his or her biometrics and
demographic information to be stored by the
State (as well as private operators) and then used
for a process termed 'authentication'.
The State gets the unchallenged power to issue
an Aadhaar number and then issue instructions
for that number to be embedded across service
providers and agencies. The most appalling
aspect of this process is that unless the
Aadhaar number is seeded in the databases of the
service provider, the citizen is denied access to
these most essential facilities. The entire gamut of
natural rights of citizens then becomes wholly
dependent on surrendering to that compulsory exaction.
If the highest court allows the Aadhaar
scheme to operate unimpeded it will hollow out
the Constitution, particularly the great rights and
liberties it assures to citizens. A People's
Constitution will transform into a State Constitution.
The question before the Bench is whether the
Constitution of India allows the State to embrace
this new programme or whether the Constitution
repudiates this giant Electronic mesh [or leash].
The threat is urgent and insidious……
This leash is connected to a central data base that
is designed to track transactions across the life of the
citizen. This record will enable the State to profile
citizens, track their movements, assess their
habits and silently influence their behaviour.
Over time, the profiling enables the State to stifle
dissent and influence political decision making.
Law Animated World, 28 February 2018
18 Aadhaar: A Grand Conspiracy (Raman Swamy)
As the Aadhaar platform extends to private
corporations, the degree of tracking and extent of
profiling will exponentially increase. …
At a time when the matter is pending before
the Constitution Bench of the Supreme Court, is
it proper for various organisations in the public
and private sector to deny service without
Aadhaar linkage? Does that not amount to
contempt of court? Also, is it ethical for senior
central ministers to use social media to launch a
massive propaganda campaign in favour of the
controversial electronic identity programme?
Does that not amount to an attempt to influence
the judiciary? ……
Interestingly, the Life Insurance Corporation,
which has till now not only insisting on linkage
but also making it virtually impossible for agents
and policy-holders to access the official website
without the 12-digit card number, seems to have
suddenly backtracked.
Apart from this, some new questions have
arisen about certain perils of mandatory Aadhaar in an
area on which little or no attention has been paid till
now – commercial secrecy. Much of the debate so far
has been on the violation of Fundamental Rights
like the Right to Life and the Right to Privacy.
Both corporate players and activists are now
realising that trade confidentiality, vitally needed
in business transactions, negotiations and deals
could become vulnerable due to the multiple
linkages between Aadhaar and GST…….
On the other hand, the Right of Profession is
guaranteed under Article 19 of the Constitution.
Hence, any attempt for the Government to seek
access and control over commercial information
like share market information, financial
transactions, PAN linkage, etc, appear to be a
clear violation. The fact that a large number of
private agencies and companies, including giant
foreign multinational corporations have been
entrusted by the UIDAI only makes the dangers
even more real. There are clearly too many
loopholes in the manner in which the Aadhaar scheme
has been out-sourced without regard to data theft,
infringement of commercial secrecy and manipulation
of markets. … …
Law Animated World, 28 February 2018
18
(2018) 1 LAW
Civil Writ Petition No. 342 of 2017… filed
under Article 32 of the Constitution challenging
the Validity of the Aadhaar Act on the grounds
that it violates the Fundamental Rights guaranteed
under Articles 14, 10 and 21. Whatever the verdict, it
will be historic. It will profoundly impact the future of
governance in the country. It will determine whether
India will remain a land of individual freedom or
become a police state where the governments will
have powers of super-surveillance. The final
hearings began …on… the original petition filed
by two women – Shanta Sinha (a Magsaysay
Award winner) and Kalyani Sen Menon (a
feminist researcher). Since then, numerous other
petitions have been filed and accepted by the
Supreme Court as "intervention applications" …..
… [one of those by AIKS] is a serious petition
that highlights the grave implications of being
excluded from essential welfare schemes if
Aadhaar identification is declared as obligatory
and mandatory. …… the original purpose of
Aadhaar [was] for the Targeted Delivery of
Financial and Other Subsidies, Benefits arid
Services. [These] financial subsidies and services
… include soil health card, crop insurance
including Pradhan Mantri Fasal Bima Yojana and
fertiliser subsidies. No fingerprint, no Aadhaar card.
No Aadhaar, No PDS, No MNREGA work. The result is
that many needy sections like farmers, labourers and
Adivasis are denied these essential subsidies, benefits
and services due to non-linking of Aadhaar. This has
already created untold misery and hardship for the
poor and impoverished who need access to the host of
farm sector welfare schemes and programmes.
Will the five-judge Constitutional Bench, after
the process of hearings, dismiss and reject all the
petitions and uphold the validity of Aadhaar? In
the light of the unprecedented upheaval that is
currently taking place inside the hallowed portals
of the Supreme Court, the odds seem to have
swung in favour of a judgment allowing the State
to go ahead with mandatory Aadhaar. The
progressive elite will be unhappy at the invasion
of their privacy. The poor will bemoan their washed-
out fingerprints.
*****
 POLICE OFFICER FIRED FOR NOT MURDERING
Police Officer Fired for Not Murdering
a Citizen Who Posed No Threat
Officer Stephen Mader was fired for not
instantly killing a non-threatening suicidal black
man, who was immediately killed on arrival of
two other policemen, Dr. Paul Craig Roberts
states, quoting Jamiles Lartey of New York in the
Guardian: https://www.theguardian.com/
According to Jamiles Lartey, the police officer
Stephen Mader, on information, went to and saw
a 23-year old black man RJ Williams, believed to
be suicidal, and on watching his conduct
determined that Williams was not violent but
depressed and so exhibited suicidal feelings and
tendencies and so tried to talk him down instead
of shooting or injuring him in any way. But his
humane and life saving efforts failed all the same
when two veteran police officers arrived on the
scene and without any notice or communication
with Mader, shot Williams down then and there.
Mader vouchsafes that though the black man had
a gun in hand, he never aimed it at him and was
in no mood to shoot anybody and laments that his
life saving efforts were thus foiled. Over and
above this Mader, an Iraq and Afghanistan war
veteran, was served with a termination order after
ten days on the plea that he did not respond to the
threat i.e. he did not shoot to kill that innocent or
at any rate non-offending black man. Mader,
then, had to and did file a suit against wrongful
termination and finally when the City [i.e. for the
Police Department employing Mader] did not
budge but its insurance provider came down and
offered to compensate Mader with a sum of
$175,000 as settlement in that regard. Lartey
reports that Mader’s Attorney declared on
winning the suit, “No police officer should ever lose
their job – or have their name dragged through the mud
– for choosing to talk to, rather than shoot a fellow
citizen.”
***
♣
Courtesy: Paul Craig Roberts at www.paulcraigroberts.org;
dated 27 February 2018; emphases in bold ours - IMS.
19
- Dr. Paul Craig Roberts♣
Dirty Oddie: Tennessee Sheriff Says
He Thrives on Killing People
In contrast, Blogger Eric says, a Tennessee
sheriff who says he thrives on killing people remains
employed and fully in charge.
Eric laments, “The absence of accountability has
placed police above the law. Police have been
abusing, robbing, and murdering the public for so
long that white Americans and their local governments,
prosecutors and courts now accept the commission of
crimes by police as a police right. If a civil suit is brought
and won against police violence, the local taxpayers, not
the offending police, have to pay the awards to the
victims of police violence.”
https://www.ericpetersautos.com/2018/02/12/dirty-oddie/
Eric says:
Back in 1971, Clint Eastwood’s character said
it on screen – and people were shocked. But it
was just a movie. And besides, Dirty Harry only
shot bad guys – murderous psychopaths, as in the
original 1971 film.
In the sequel film – Magnum Force – Dirty
Harry shot murderous, psychopathic cops.
Today we have Dirty Oddie – and he’s not a
character on the silver screen. He’s an armed
government worker – a law enforcement officer –
in Tennessee. And he “loves this shit” – Killing
people, that is. [In] Dirty Oddie’s own words,
“God, I tell you what, I thrive on it,” he adds (in
between chuckles).
Dirty Oddie thought he was talking behind
closed doors, among his fellow armed
government workers, when he uttered those
words in the wake of yet another roadside
execution that was the culmination of yet another
needless escalation over the enforcement of an
initially petty violation of statute.
Michael Dial, 33, was driving on a suspended
license. No one had been harmed. He wasn’t
even bothering anyone.
He was merely driving without – so to speak –
the King’s Permission. Apparently, an armed
Law Animated World, 28 February 2018
20 Tennessee Sheriff thrives on Killing People (Eric)
government worker ran the plates hanging off his
battered old pick-up truck and thus began the
fatal encounter.
When armed government workers attempted to
stop Dial, he did not stop. Probably because he
lacked the funds he knew the armed government
workers would extract from his hide for driving
without the “required” permission slip. Perhaps
because he was understandably terrified of
what else they might do.
Granted, he didn’t stop. Are jaywalkers next on
the Kill List?
The point is Dial wasn’t initially a criminal in even
the misdemeanor sense and the armed government
workers knew that, having run his name through their
computers – which is how they discovered the
suspended license “offense.” And it’s worth
noting that Dial – who was white – was initially
targeted for scrutiny – the license check – for the
not-even-statutory “offense” of being poor. He
was driving a battered and faded decades-old
truck and hauling a trailer load of junk.
This drew their attention. Then their fire.
It is not in keeping with politically correct
orthodoxies, but it’s not primarily skin color that
paints a target on your back. It is economic status – as
perceived among other qualifiers by the type of
vehicle you drive.
At any rate, the armed government workers could
have discreetly followed Dial rather than amped up the
situation with their howling sirens and flashing
lights – which are designed to confuse and
disorient the target of their attentions.
They could have backed off – and calmed things
down. Why not? There was no good reason to
escalate as Dial wasn’t a threat to anyone. But
doing that would constitute the worst offense of all –
a threat to the Authority of armed government workers.
And that is a capital offense in America.
Dial led the armed government workers on a
low-speed “pursuit” – his battered truck, which
was pulling a trailer loaded with stuff he’d picked
up at a flea market – was hardly capable of more.
Dirty Oddie’s men surround the truck, then ram it
– and the trailer – attempting to sideswipe it off
Law Animated World, 28 February 2018
20
(2018) 1 LAW
the road. This is not enough escalation for him.
“Don’t ram him. Shoot him! Fuck that shit! You’re
gonna tear my cars up.” Dirty Oddie is more
concerned about damaged sheetmetal than he is about
Dial’s life – which ends shortly thereafter in the
usual hail of bullets. Dial was not armed. All of this
over a suspended driver’s license. All because Dirty
Oddie could not tolerate such an offense – the
affront to Authority, not the suspended license –
to go unpunished. Naturally, the local government
prosecutor – who per SOP rarely if ever prosecutes
other government workers – “cleared” the armed
government workers [who] shot Dial to death on the
bloodthirsty orders of Dirty Oddie.
Who was caught on tape exulting in Dial’s
death. Dial’s widow is attempting to get the Feds
to intervene, but this is like asking the Gambino
family for assistance dealing with the excesses of the
Genovese family. If she gets money, it will be
extracted from other victims – the people of the
Tennessee, who will be made to pay for Dirty Oddie’s
crimes. And the consequences – if any – will of course
be purely financial. Dirty Oddie will not be removed
from his position of “public trust” for reasons of
obvious psychopathy. None of the armed
government workers who carried out his
psychopathic orders will see the inside of a jail
cell. When the video of this incident went public,
Dirty Oddie claimed that he “…gave the order to
take him out because he was going to kill somebody if
we hadn’t.”
But it was Dirty Oddie’s men who created the situation
by escalating a trivial infraction into what became a
roadside fusillade.
Driving on a suspended license does not mean one is
driving dangerously. It means one is driving without
government permission – that’s all. Is this offense so
egregious that it justifies a multi-car pursuit?
Ramming – and gunfire?
Would it have threatened public safety in any
actual way to let Dial continue driving home and
deal with the trivial infraction of the motor
vehicle code later? Even Dirty Harry would be
disgusted.
*****
(2018) 1 LAW WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC] F-73

(2018) 1 LAW F-73 (NZ-SC) PRESS SUMMARY

IN THE SUPREME COURT OF To limit the risk of accidents from aircraft over-
NEW ZEALAND AT WELLINGTON shooting or undershooting a runway on landing or take-
off, the Convention on International Civil
S.C. 26/2017 Aviation, to which New Zealand is a party,
Dated: Thursday, 21 DECEMBER 2017 requires that airports servicing particular categories of
BETWEEN: aircraft have runway end safety areas (RESAs) at each
end of a runway. These requirements have been
Wellington International
Airport Limited … Appellant implemented in New Zealand through the Civil
and Aviation Rules (the Rules), made under the Civil
Aviation Act 1990 (the Act).
New Zealand Air Line Pilots’ Association
Industrial Union Of Workers Incorporated Wellington International Airport Ltd (WIAL)
and Director of Civil Aviation … Respondents. operates Wellington Airport. The RESA
requirements applicable to Wellington Airport
Court: Elias, CJ., William Young, Glazebrook,
under the Rules are that:
Ellen France and Ornald JJ
Counsel: (a) A RESA must extend to a distance of at
D J Goddard QC, V L Heine & S E Quilliam-Mayne least 90 m and, if practicable, to a distance
for Appellant in SC 26/2017 and of at least 240 m, or to the greatest distance
Second Respondent in SC30/2017 practicable between 90 and 240 m.
H B Rennie QC and E M Geddis (b) A RESA must be “acceptable” to the
for First Respondent
in SC26/2017 and SC30/2017
Director of Civil Aviation (the Director).
F M R Cooke QC, M S Smith and D R Johnson Currently, WIAL operates Wellington Airport
For SecondRespondent in SC 26/2017 and with 90 m RESAs. WIAL wishes to extend the
Appellant in SC 30/2017
C J Curran and A A Arthur-Young
runway. It considered that 90 m RESAs would be
for New Zealand Airports Association as Intervener sufficient if the runway were to be extended and
Citation: WIAL v. New Zealand Airline Pilots Assn.♣ sought the Director’s acceptance of this under the
(2018) 1 LAW F-73 (NZ-SC) = [2017] NZSC 199 Rules. Although he accepted that longer RESAs
would reduce the risk of accidents on landing and
***
take-off, the Director indicated that 90 m RESAs
Supreme Court of New Zealand would be acceptable to him, essentially because the costs
Te Kōti Mana Nui of RESAs longer than 90 m outweighed the safety
21 December 2017 benefits that would result.
WELLINGTON INTERNATIONAL AIRPORT LIMITED v The New Zealand Air Line Pilots’ Assoc
NEW ZEALAND AIR LINE PILOTS’ ASSOCIATION
INDUSTRIAL UNION OF WORKERS INCORPORATED AND Industrial Union of Workers Inc (NZALPA)
DIRECTOR OF CIVIL AVIATION issued judicial review proceedings challenging
(SC 26/2017 and SC 30/2017) the Director’s decision.
[2017] NZSC 199
NZALPA’s application was dismissed in the High
♣
Courtesy: Supreme Court of New Zealand – this summary Court but was successful on appeal to the Court of
is provided to assist in the understanding of the Court’s Appeal. The Director and WIAL filed separate
judgment. It does not comprise part of the reasons for that applications for leave to appeal to this Court.
judgment. The full judgment with reasons is the only Both were granted leave on the question of
authoritative document. The full text of the judgment and
whether the Court of Appeal was right to allow
reasons can be found at Judicial Decisions of Public
Interest www.courtsofnz.govt.nz (reproduced by us after NZALPA’s appeal. The key issues identified by
this summary); Emphases in bold ours - IMS. the Court of Appeal were:

Law Animated World, 28 February 2018

21
F-74 WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC] (2018) 1 LAW

(a) the meaning to be given to the word IN THE SUPREME COURT OF

“practicable” in the context of the rule requiring
a RESA to extend to at least 90 m and, if NEW ZEALAND AT WELLINGTON
practicable, to a distance of at least 240 m, or to S.C. 26/2017
the greatest distance practicable between 90 and
Dated: Thursday, 21 DECEMBER 2017
240 m; and
BETWEEN:
(b) the role of a cost/benefit analysis in the
Director’s decision. WELLINGTON INTERNATIONAL
AIRPORT LIMITED … Appellant
In this Court, the Director and WIAL maintained the
interpretation of “practicable” applied by the Director in
AND
making his decision: that is, a case by case analysis involving NEW ZEALAND AIR LINE PILOTS’
the balancing of safety considerations against the cost and ASSOCIATION INDUSTRIAL UNION
difficulty of extending a RESA. NZALPA’s position was
OF WORKERS INCORPORATED
… 1st Respondent
that “practicable” refers to what is physically feasible or what
is able to be constructed; not what is reasonable on the basis of DIRECTOR OF CIVIL AVIATION
a cost/benefit analysis. … 2nd Respondent.
This Court has unanimously dismissed the appeal, S.C. 30/2017
although its reasoning differs from that of the Court of DIRECTOR OF CIVIL AVIATION … Appellant
Appeal. This Court considered that the question of what AND
is “practicable” requires a more nuanced approach than those NEW ZEALAND AIR LINE PILOTS’ ASSOCIATION
contended for by the parties. What is “practicable” must INDUSTRIAL UNION OF WORKERS INCORPORATED
be addressed in the particular context in which the issue is … 1st Respondent
raised. While a cost/benefit analysis may provide WELLINGTON INTERNATIONAL AIRPORT LIMITED
assistance to the Director in deciding whether a RESA … 2nd Respondent.
is acceptable, such an analysis is an incomplete tool. Hearing: 24 & 25 August 2017
Promotion of safety is a key focus of the Act and a mandatory
relevant consideration in rule-making. Against that
Court: Elias, CJ., William Young, Glazebrook,
background, the broader benefits accruing to the airport Ellen France and Ornald JJ
operator, which a cost/benefit analysis may not capture, may Counsel:
be relevant to the director’s decision-making. If, for D J Goddard QC, V L Heine & S E Quilliam-Mayne
example, a runway extension would create a new and for Appellant in SC 26/2017 and
substantial income stream for an airport operator, that Second Respondent in SC30/2017
additional benefit may mean that a longer RESA is H B Rennie QC and E M Geddis
“practicable” given that a longer RESA will enhance safety. for First Respondent
in SC26/2017 and SC30/2017
The Court has found that the Director erred in law in F M R Cooke QC, M S Smith and D R Johnson
assessing what was “practicable” solely by reference to
For SecondRespondent in SC 26/2017 and
WIAL’s costs as balanced against safety benefits. He was Appellant in SC 30/2017
required to consider whether safety could be improved and in C J Curran and A A Arthur-Young
considering that, ought to have considered benefits accruing to for New Zealand Airports Association as Intervener
WIAL as a result of the extension. It was possible that Judgment: 21 December 2017
such benefits might justify the Director requiring an
incremental improvement in safety in the form of a JUDGMENT OF THE COURT
RESA longer than 90 m. A. The appeals are dismissed.
This Court also found that the Director erred in his B. Costs The Director of Civil Aviation and Wellington
International Airport Limited are jointly and severally
approach by taking WIAL’s proposal as the starting
liable to paycosts of $30,000 to the New Zealand Air Line
point of his analysis rather than the requirements of the
Pilots’ Association Industrial Union of Workers
Rules and by not considering the question of an Incorporated, plus reasonable disbursements to be
arresting system because it was not part of WIAL’s determined by the Registrar if necessary. We allow for
proposal. second counsel.
*** ***

Law Animated World, 28 February 2018

22
(2018) 1 LAW WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
REASONS (Given by Arnold J)
Table of Contents
Introduction
Factual background
Regulatory framework
International dimension
National dimension
(i) The Civil Aviation Act 1990
(ii) The Civil Aviation Rules
Basis of Director’s decision
The dispute
Evaluation
Effect of 2004 Amendment Act
Relationship between Director and
airport operator
Meaning of “practicable”
Drawing the threads together
Result
***
INTRODUCTION
[1] Overshooting or undershooting the runway is
a major cause of aircraft accidents world-wide.1
To limit the risk of such accidents, international
instruments to which New Zealand is a party
require that airports servicing particular
categories of aircraft have runway end safety
areas (RESAs) at each end to the runway. These
requirements have been implemented in New
Zealand through the Civil Aviation Rules (the
Rules), made under the Civil Aviation Act 1990
(the Act). In particular, the Rules impose two
relevant requirements:
1
Overshoots can occur on landing or take-off and are much
more common than undershoots, which occur on landing.
F-75
(a) First, a RESA must extend to a distance of at
least 90 m and, “if practicable”, to a distance
Para No. of at least 240 m, from the end of the runway
strip (or the greatest distance practicable
[1] between 90 and 240m).2
(b) Second, a RESA must be “acceptable” to the
[4] Director of Civil Aviation (the Director).3
[12] [2] Wellington International Airport Ltd (WIAL)
operates Wellington Airport, to which the RESA
[13] requirements apply. Currently WIAL operates
[17] with 90 m RESAs at each end of the runway,
which the Director has accepted. WIAL wishes
[18] to extend the runway and approached the Director
[30] to ask whether RESAs of 90 m would be
acceptable to him in respect of the extended
[38] runway. The Director advised that they would be.
[43] The New Zealand Air Line Pilots’ Assoc
Industrial Union of WorkersInc (NZALPA),
[48] which has long advocated for RESAs of at least
[49] 240 m, both generally and at Wellington, issued
judicial review proceedings challenging the
[58] Director’s decision. The challenge was
unsuccessful in the High Court4 but succeeded on
appeal.5 Both the Director and WIAL filed
[63] separate applications for leave to appeal to this
[70] Court. Both were granted leave, the single question
being whether the Court of Appeal was correct to allow
[72] NZALPA’s appeal to that Court.6
[3] The essential issue identified by the Court of
Appeal was whether the Director had erred in law
when deciding that a RESA of 90 m was acceptable.7
2
Civil Aviation Rules, pt 139 Appendix A.1(a).
3
Rule 139.51(c). The Director is the Chief Executive of
the Civil Aviation Authority: Civil Aviation Act 1990, s
72I(1).
4
New Zealand Air Line Pilots’ Assoc Industrial Union of
Workers Inc v Director of Civil Aviation[2016] NZHC
1528 (Clark J) [NZALPA(HC)].
5
New Zealand Air Line Pilots’ Assoc Industrial Union of
Workers Inc v Director of Civil Aviation[2017] NZCA
27, [2017] 3 NZLR 1 (Harrison, Wild and Brown JJ)
[NZALPA(CA)].
6
Wellington International Airport Ltd v New Zealand
Airline Pilots’ Assoc Industrial Union of Workers
Inc[2017] NZSC 70.
7
NZALPA(CA), above n 5, at [2].
Law Animated World, 28 February 2018
23
F-76 WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
Important to this issue is the meaning to be given to
the qualification “if practicable” in the context of the
rule relating to RESAs and the role of a cost/benefit
analysis in the Director’s decision-making.
FACTUAL BACKGROUND
[4] The factual background can be stated briefly.8
[5] The existing runway at Wellington Airport
includes at each end a 60 m area called a stopway
and a 90 m RESA, which together provide 150 m
in additional length against the possibility that an
aircraft will over-shoot the main runway area on
landing or take-off, or under-shoot it on landing.
Both the stopway and RESA areas are also used
as starter extensions to increase the distance
available to aircraft when taking off, so that the
various elements appear as a continuous strip.
The following diagram is a simplified illustration
of the layout:
[6] As presently configured, the airport cannot
accommodate larger commercial aircraft, unless they
operate under weight restrictions. Accordingly,
WIAL considered extending the runway. In
August 2012 WIAL wrote to the Director seeking
clarification on the required length of RESA if it
were to extend the runway “around 200 m” to the
north, across Cobham Drive and into Evans Bay.
WIAL expressed the view that 90 m RESAs would be
adequate and highlighted various factors, including the
likely cost of extending to the north (around $1 million
per linear metre) and the substantial economic benefits
that extending the runway would bring to the
Wellington region. The Director responded by
asking WIAL to supply further information,
principally the basis for its cost estimate of $1
million perlinearmetre and likely operational
levels, and to undertake a cost/benefit analysis.
8
This summary is largely drawn from the judgment of the
Court of Appeal.
Law Animated World, 28 February 2018
24
(2018) 1 LAW
[7] In February 2013, NZALPA representatives
met with personnel from the CivilAviation
Authority (the Authority) to highlight the
importance of 240 m RESAs generally.
NZALPA followed the meeting up with a letter in
which it said it was pleased that the Authority had
confirmed that a 240m RESA would be the
starting point for runway extensions over 15m
and that an engineered material arresting system
(EMAS) would be considered as a practicable
alternative to a full 240m RESA.99 NZALPA also
asked about WIAL’s proposal to extend the
runway at Wellington.
[8] In July 2013, WIAL provided the Director
with two reports, one of which was a cost/benefit
analysis prepared by McGregor & Co
(McGregor), consultants with expertise in
aviation safety issues. That report addressed the
benefits and costs associated with having RESAs
longer than 90 m atWellington, specifically,
RESAs of 140 m and 240 m. NZALPA later
commissioned its own report from Covec
Economic Consultants (Covec), dated September
2013,which took the form of a peer review of the
cost/benefit analysis undertaken by McGregor.
Covec concluded that the McGregor analysis
had a number of shortcomings, in particular
underestimating the plausible benefits of longer
RESAs. WIAL then commissioned an updated
report from McGregor, dated October 2013. The
updated McGregor report concluded thatRESAs
of 140mor 240 m were not justified at Wellington
on a cost/benefit basis. To gain an independent
view, the Authority engaged Castalia Strategic
Advisors (Castalia)in November 2013, to review
the updated McGregor report. Castalia concluded
that McGregor’s cost/benefit analysis provided “a
reasonable basis for concluding that RESA
options of longer than 90 [m]at Wellington
9
Various arresting systems are available, which allow
airport operators to have shorter RESAs. An engineered
material arresting system (EMAS) uses material such as
crushable cellular cement blocks to slow an aircraft down
– the blocks are crushed under the weight of the aircraft,
absorbing its momentum and bringing it to a stop.
(2018) 1 LAW WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
Airport would impose costs that exceed any
safety benefits that would be achieved”. In
addition, the Authority’s Aeronautical Services
Unit conducted an assessment of the McGregor
report in November 2013 and concluded it was
sound.
[9] All the reports were given to the Director. He
considered them along with other material and
internal legal advice. In February 2014 the
Director advised WIAL that he considered it
would not be practicable to require WIAL to
provide RESAs exceeding 90 m, so that RESAs
of 90 m were acceptable to him. The Director
indicated that the projected cost of longer RESAs was a
significant factor in his decision, which would be
affected by a substantial reduction in costs. He
indicated that if WIAL decided to proceed with
the extension project, it would have to provide
robust, updated costings. To that extent, then, the
Director was expressing a provisional view.
[10] After further geotechnical investigation,
WIAL revised its plans and decided to extend the
runway to the south, into Lyall Bay. In October
2014 WIAL wrote to the Director confirming that
its intention was now to extend the runway to the
south and in November 2014 provided him with a
further updated report from McGregor addressing
extensions to the south of 100, 200 and 300 m.
This report concluded that, on a cost/benefit basis,
RESAs longer than 90 m were not justified. On this
basis, WIAL sought the Director’s acceptance of
90 m RESAs for a southern runway extension.
On 20 March 2015 the Director prepared what was
described as a file note, in which he said that RESAs of
90 m would be acceptable, and WIAL and NZALPA
were advised accordingly.10 This led to the issue of
the present proceedings by NZALPA challenging
the Director’s decision.
[11] WIAL has subsequently modified its plans
further. Its current proposal is to extend the
runway by 355 m to the south, at a cost of
approximately $330 million, and it has applied
for a resource consent for that proposal. This will
10
The basis for the Director’s decision is set out below at
[38]-[42].
25
F-77
presumably require a further decision from the
Director.
REGULATORY FRAMEWORK
[12] The regulatory framework has both an
international and a national dimension, as we now
briefly describe.
International dimension
[13] New Zealand is a party to the Convention on
International Civil Aviation made in Chicago in
December 1944 (the Chicago Convention), under
which the International Civil Aviation Organization
(ICAO) was established.11 Under art 37, the
contracting states undertake to collaborate in:
…securing the highest practicable degree of
uniformity in regulations, standards, procedures,
and organization in relation to aircraft, personnel,
airways and auxiliary services in all matters in
which such uniformity will facilitate and
improve air navigation.
Article 37 goes on to say:
To this end the International Civil Aviation
Organization shall adopt and amend from time to
time, as may be necessary, international
standards and recommended practices and
procedures dealing with:
…
(b) Characteristics of airports and landing areas;
…
[14] The Chicago Convention distinguishes between
standards (which are binding) and recommended
practices (which are not binding), and allows for the
possibilityof notifying the ICAO of differences
(or making reservations) where a state finds it
“impracticable to comply in all respects with any
such international standard or procedure” or
“deems it necessary to adopt regulations or
practices differing in any particular respect from
those established by an international standard”.12
[15] Before 1998, there were no standards for
RESAs, simply recommendations. But in April
11
Convention on International Civil Aviation 15 UNTS 295
(opened for signature 7 December 1944, entered into
force 4 April 1947) [Chicago Convention].
12
Article 38.
Law Animated World, 28 February 2018
F-78 WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
1998 the ICAO adopted a 90 m RESA as a
minimum standard for international aerodromes,
and Annex 14 to the Chicago Convention, which
deals with standards and recommended practices
relating to the design of aerodromes, was
amended to this effect in 1999.13 The Annex
explains the difference between standards and
recommendations as follows:14
Standard: Any specification for physical
characteristics, configuration, matériel,
performance, personnel or procedure, the
uniform application of which is recognized as
necessary for the safety or regularity of
international air navigation and to which
Contracting States will conform in accordance
with the [Chicago] Convention; in the event of
impossibility of compliance, notification to the
Council is compulsory under Article 38.
Recommended Practice: Any specification for
physical characteristics, configuration, matériel,
performance, personnel or procedure, the
uniform application of which is recognized as
desirable in the interest of safety, regularity or
efficiency of international air navigation, and to
which Contracting States will endeavour to
conform in accordance with the [Chicago]
Convention.
[16] The standards and recommendations for the
dimensions of RESAs are found in cl 3.5 of
Annex 14. For an airport such as Wellington:
(a) Clause 3.5.3 sets the standard that a RESA
“shall extend from the end of a runway stripto a
distance of at least 90m”, although the length
may be reduced if an arresting system is
installed, according to its design specifications
and “subject to acceptance by the State”.
(b) Clause 3.5.4 provides the recommendation
that a RESA “should, as far as practicable,
extend from the end of a runway strip to a
distance of: at least 240 m …; or a reduced
length when an arresting system is installed”.15
The reference to arresting systems (such as EMAS)
came about because, in November 2013, the ICAO
13
Annex 14, cl 3.5.3.
14
Foreword to Annex 14.
15
Emphasis removed from original.
Law Animated World, 28 February 2018
26
(2018) 1 LAW
amended Annex 14 so to permit the length of a RESA to
be reduced if an arresting system was installed.
Guidance is provided in para 10.2 of Attachment
A to Annex 14 as follows:
Where provision of a runway end safety area
would be particularly prohibitive to implement,
consideration would have to be given to reducing
some of the declared distances of the runway for
the provision of a runway end safety area and
installation of an arresting system.
National dimension
[17] In discussing the national dimension, we
deal with the Act and the Rules in turn.
(i) The Civil Aviation Act 1990
[18] As described in its long title, the Act has two
relevant purposes:
(a) to establish rules of operation and divisions
of responsibility within the New Zealand
civil aviation system in order to promote
aviation safety; and
(b) to ensure that New Zealand’s obligations
under international aviation agreements are
implemented; …
[19] When the Act was originally enacted in 1990,
s 14 dealt with the Minister’s functions and
provided:
14 Functions of Minister
(1) The principal functions of the Minister under
this Act shall be to promote safety in civil
aviation at a reasonable cost, and to ensure
that New Zealand’s obligations under
international civil aviation agreements are
implemented.
…
(3) For the purposes of subsection (1) of this
section, a cost is a reasonable cost where the
value of the cost to the nation is exceeded by
the value of the resulting benefit to the
nation.
As detailed below, this version of s 14 has been
repealed and replaced. But three features of it are
pertinent to the issues in the appeal. First, one of the
Minister’s two functions under s 14(1) was to
“promote safety in civil aviation at a reasonable cost”.
Second, the standard of “a reasonable cost” in s 14(1)
(2018) 1 LAW WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
was to be assessed by way of a cost/benefit analysis.
Third, that cost/benefit analysis had a national rather
than a local or regional focus.
[20] Section 14 was repealed and replaced as
from 1 December 2004, when the Civil Aviation
Amendment Act (No 2) 2004 (the 2004
Amendment Act) came into effect.16 New
provisions in relation to the Civil Aviation
Authority and the Director also came into effect
at this time. These new and amended provisions,
along with others mentioned below, resulted from
the Government’s adoption of the NewZealand
Transport Strategy, to which we return later in
these reasons.17
[21] Under the Act as it presently stands, the
responsible Minister has both objectives and functions.
The Minister’s objectives are set out in s 14,
which provides:
14 Objectives of Minister
The objectives of the Minister under this Act are –
(a) to undertake the Minister’s functions in a way
that contributes to the aim of achieving an
integrated, safe, responsive, and sustainable
transport system; and
(b) to ensure that New Zealand’s obligations
under international civil aviation agreements
are implemented.
[22] Section 14A deals with the Minister’s
functions and relevantly provides:
14A Functions of Minister
The functions of the Minister under this Act are –
(a) to promote safety in civil aviation:
(b) to administer New Zealand’s participation in
the [ChicagoConvention] and any other
international aviation convention, agreement,
or understanding to which the Government of
New Zealand is a party:
(c) …
(d) to make rules under this Act.
16
Civil Aviation Amendment Act (No 2) 2004 [2004
Amendment Act], s 4.
17
New Zealand Transport Strategy (Ministry of Transport,
December 2002).
27
F-79
As will be obvious, ss 14 and 14A are in much
broader terms than the original version of s 14.
Moreover, s 14A (a) refers to promoting safety in civil
aviation without the “at a reasonable cost” qualification
that appeared in the original s 14(1).
[23] The words “in a way that contributes to the
aim of achieving an integrated, safe, responsive,
and sustainable transport system” in the current s
14(a) occur again in s 72 AA, which describes the
objective of the Authority as follows:18
72AA Objective of Authority
The objective of the Authority is to undertake its
safety, security, and other functions in a way that
contributes to the aim of achieving an integrated,
safe, responsive and sustainable transport
system.
When it was established in 1992, the Authority
did not have a statutory objective.19 Section
72B(1) set out its principal function as being “to
undertake activities which promote safety in civil
aviation at a reasonable cost”, adopting the (then)
s 14(1) language. The section went on to identify
additional functions which the Authority had
“[i]n furtherance of its principal function”.20 The
2004 Amendment Act inserted the Authority’s
objective section, s 72AA,21 and amended s 72B
by repealing s 72B(1) and modifying the
Authority’s list of functions.22 The first of the
Authority’s enumerated functions in the current s
72B(2) is “to promote civil aviation safety and
security in New Zealand” and the second “to
promote civil aviation safety and security beyond
New Zealand in accordance with New Zealand’s
international obligations”.23 There is no reference
to cost in the list of functions.
[24] The functions of the Director are set out in s
72 I(2) and (3) as follows:
18
We explain the background to this language below at
[51]-[54].
19
The Authority was established by the Civil Aviation
Amendment Act 1992.
20
Civil AviationAct 1990, s 72B(2).
21
Inserted by s 7 of the 2004 Amendment Act.
22
2004 Amendment Act, s 8.
23
Civil Aviation Act, s 72B(2)(a) and (b).
Law Animated World, 28 February 2018
F-80 WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
(2) The Director shall have and may exercise
such functions and powers as may be
conferred or imposed on the Director by this
Act, or regulations or rules made under this
Act….
(3) Without limiting subsection (2), the Director
shall –
(a) exercise control over entry into the civil
aviation system through the granting of
aviation documents under this Act; and
(b) take such actionas may be appropriate in
the public interest to enforce the
provisions of this Act and of regulations
and rules made under this Act, including
the carrying out or requiring of
inspections and monitoring; and
(c) monitor adherence, within the civil
aviation system, to any regulatory
requirements relating to –
(i) safety and security, including (but not
limited to) personal security:
(ii) access and mobility:
(iii) public health:
(iv) environmental sustainability:
(v) any other matter; and
(d) ensure regular reviews of the civil aviation
system to promote the improvement and
development of its safety and security.
Paragraphs (c) and (d) of subs (3) were added by
the 2004 Amendment Act.24
[25] The Minister is empowered under s 28 of the
Act to make ordinary rules for a number of
purposes, relevantly:
28 Power of Minister to make ordinary rules
(1) The Minister may from time to time make
rules (in this Act called ordinary rules) for all
or any of the following purposes:
(a) the implementation of New Zealand’s
obligations under the [Chicago]
Convention:
…
(c) assisting aviation safety and security,
including (but not limited to) personal
security:
24
2004 Amendment Act, s 9.
Law Animated World, 28 February 2018
28
(2018) 1 LAW
(ca) assisting economic development:
…
(cd) ensuring environmental sustainability:
(ce) any matter related or reasonably
incidental to any of the following:
(i) the Minister’s objectives under section
14:
(ii) the Minister’s functions under section
14A:
(iii) the Authority’s objectives under
section 72AA:
(iv) the Authority’s functions and duties
under section 72B:
(v) the Director’s functions and powers
under section 72I:
(d) any other matter contemplated by any
provision of this Act.
…
Section 28(1)(c), (ca), (cd) and (ce) were inserted
by the 2004 Amendment Act.25
[26] Under s 31 of the Act, the Director is authorised
to make emergency rules in specified circumstances.
Under s 33(1), the rules made by the Minister and
by the Director respectively:
… shall not be inconsistent with the following:
(a) the standards of ICAO relating to aviation
safety and security, to the extent adopted by
New Zealand:
(b) New Zealand’s international obligations
relating to aviation safety and security.
(emphasis added)
[27] In addition, s 33(2) provides that, when
exercising their respective rule-making powers,
the Minister and the Director must “have regard
to” and “give such weight as he or she considers
appropriate in each case to” a number of
considerations, as follows:
(a) the recommended practices of ICAO relating to
aviation safety and security, to the extent
adopted by New Zealand:
(b) the level of risk existing to aviation safety in
each proposed activity or service:
25
2004 Amendment Act, s 5.
(2018) 1 LAW WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
(c) the nature of the particular activity or service
for which the rule is being established:
(d) the level of risk existing to aviation safety
and security in NewZealand in general:
(e) the need to maintain and improve aviation
safety and security, including (but not limited
to) personal security:
(f) whether the proposed rule –
(i) assists economic development:
(ii) improves access and mobility:
(iii) protects and promotes public health:
(iv) ensures environmental sustainability:
(fa) the costs of implementing measures for
which the rule is being proposed:
(g) the international circumstances in respect of –
(i) aviation safety and security; and
…
(h) such other matters as the Minister or the
Director considers appropriate in the
circumstances. (emphasis added)
Paragraphs (e), (f) and (fa) of s 33(2) were
amended by the 2004 Amendment Act.26 When
initially enacted in 1990, paragraph (e) read: “The
need to maintain aviation safety and security”.
The reference to improving as well as maintaining
aviation safety came in with the 2004 Amendment
Act.
[28] There are two features of s 33 which require
immediate emphasis:
(a) First, s 33 distinguishes between the ICAO’s
standardsand its recommendations. Rules
made under the Act may not be inconsistent
with the former; the latter are simply
mandatory considerations in rule-making.
(b) Second, the significance of cost in the rule-
making process changed after the 2004
Amendment Act. As originally enacted, the
Act required a cost/benefit analysis,
conducted on a national basis, as the basis for
the performance by the Minister of his or her
functions, including rule-making.27 After the
2004 Amendment Act, cost became one of
26
2004 Amendment Act, s 6.
27
See above at [19].
29
F-81
12 mandatory considerations in the rule-
making process. The effect of this change is
a matter of contention between the parties.
[29] For the sake of completeness, we note that:
(a) The Director has the power to grant
exemptions from the Rules if satisfied that
one of four specified criteria is met and that
the risk to safety will not be significantly
increased by granting the exemption.28 No
issue of exemption arises in the present
case.
(b) The Director must act independently of the
Minister and the Authority in performing
his or her functions as to the granting,
suspension and revocation of aviation
documents and medical certificates and in
his or her enforcement role.29
(ii)The Civil Aviation Rules
[30] Part 139 of the Rules was originally issued
in 1992. It regulates the “Certification, Operation
and Use” of aerodromes in New Zealand and
implements the standards and recommended
practices adopted in annexes to the Chicago
Convention.
[31] In anticipation of the 1999 amendments to
Annex 14 to the Chicago Convention concerning
RESAs, the Authority began a lengthy process of
technical evaluation and industry consultation to
assess how New Zealand should respond and
what changes should be made to pt 139. This
included obtaining a cost/benefit analysis from
McGregor in December 2002 in relation to
requiring RESAs at international airports in New
Zealand (the 2002 McGregor report).
[32] McGregor identified the objective of the study
as being “to determine whether the value to New
Zealand of requiring RESAs at international airports is
exceeded by the cost to the nation”. This was consistent
with s 14 as it then stood, which required the Minister to
undertake a nationally-based cost/benefit analysis.30
28
Civil Aviation Act, s 37.
29
Section 72I(4).
30
The 2004 Amendment Act came into force on 1 December
2004, mid-way through therule-making process.
Law Animated World, 28 February 2018
F-82 WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
Later, when discussing the place of a cost/benefit
analysis in relation to the Annex 14 provisions
concerning RESAs, the 2002 McGregor report
noted that a cost/benefit analysis did not apply in
relation to standards (which, subject to any
reservation, were mandatory), but would be
relevant to recommendations. The question,
therefore, was not whether RESAs should be required
but whether their length should be 90 or 240 m.
[33] The 2002 McGregor report went on to note
the limitations of a cost/benefit analysis:
Intangible costs and benefits (those that cannot
be measured) will also need to be identified and
considered. In this regard there may be an
industry or public perception and emotive
element attached to RESAs. ‘Intangibles’ can be
very important in assessing the conclusions of an
economic analysis and can have a significant
bearing on recommendations. Sometimes
economic development costs or benefits can fall
into the intangible category.
The report also noted that a regulator would have a
broader set of cost and benefit interests than an airport
operator, which would be concerned with the
costs and benefits that directly affect its operation
rather than with costs and benefits to the wider
aviation system and to the nation.
[34] On 2 July 2004, the Authority issued a
Notice of Proposed Rule Making in relation to pt
139 and sought public comment. In September
2005, the Authority prepared a summary of the
public submissions and the Authority’s response
to the points raised. The Authority noted strong
disagreement among those consulted as to
adoption of the ICAO recommended practice in
the Rules but nevertheless took the view that the
“RESA should be 240m where possible”. The
Authority referred to statistical information that
accidents at landing and take-off constitute a high
proportion of overall aircraft accidents and that the
rates at which such accidents are attributed to overruns
or overshoots is significant. It noted that “statistics
indicate that 240 metres will capture approximately
90% of the events compared to approximately 68% for
90 metres” (footnote omitted). This, and the
reinforcement of a cost/benefit analysis, had led it
Law Animated World, 28 February 2018
30
(2018) 1 LAW
to the conclusion that the RESA length should be 240 m
where practicable. Although the Authority
acknowledged that it had received expressions of
concern about the indeterminacy of the term
“practicable”, its recommendation emphasised
that assessment would be on a case by case basis
and that advisory materials would be developed
as cases were dealt with. The materials would
provide guidance on what might constitute
acceptable processes and steps taken to show that
all practicable measures had been taken to meet
the RESA requirements.
[35] On 7 July 2006, the Director reported to the
Minister for Transport Safety, Hon Harry
Duynhoven, recommending the promulgationof
various rules, including amendments to pt 139.
The Director described the objective of the proposed
amendment to pt 139 as being “to improve aviation
safety by incorporating into Part 139 the ICAO Annex
14 requirements for runway end safety areas to be
provided at each end of a runway”. On 5 September
2006, the Minster acted on the recommendation
and promulgated the new rules. The amended pt
139 came into effect on 12 October 2006.
[36] Under r 139.5(a) as it now reads, no one may
operate an aerodrome to which r139.5 applies
“except under the authority of an aerodrome
operator certificate granted by the Director under
the Act and in accordance with this Subpart”.
Rule 139.51 deals with aerodrome design
requirements. There are two relevant
requirements:
(a) Under r 139.51(b), an applicant (WIAL in
this case) “must ensure that a runway end
safety area that complies with the physical
characteristics prescribed in appendix A.1 is
provided at each end of a runway at the
aerodrome”.
(b) Under r 139.51(c), a RESA “must be
acceptable to the Director”.
[37] In relation to the first requirement, Appendix
A.1 to pt 139 provides:
A.1 Physical characteristics for RESA
(a) A RESA must extend –
(2018) 1 LAW WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
(1) to a distance of at least 90 metres from the
end of the runway strip, and
(2) if practicable –
(i) to a distance of at least 240 metres from
the end of the runway strip; or
(ii) to the greatest distance that is
practicable between the 90 metres
required in paragraph (a)(1) and the
240 metres required in paragraph
(a)(2)(i). (emphasis added)
As can be seen, Appendix A.1 to pt 139 deals
with RESAs rather differently than cl 3.5 of
Annex 14 to the Chicago Convention. Whereas
cl 3.5 set a standard of a 90m RESA in cl 3.5.3
and a recommendation for a 240 m RESA in cl
3.5.4 (a RESA “should as far as practicable
extend”),31 Appendix A.1 expresses both
elements in mandatory terms, subject to a
practicability test for RESAs beyond 90 m.
BASIS OF DIRECTOR’S DECISION
[38] When the Director advised WIAL that he
considered that a 90 m RESA would be
acceptablefor a northern extension,32 he explained
that the reason he had earlier sought further
information from WIAL (which included a
cost/benefitanalysis)33 was because:
… the CAA accepts that ultimately, whether an
individual RESA is of the greatest practicable
length will come down to a balancing exercise in
which safety considerations (benefits) are weighed
against the cost and difficulty of providing a RESA
length greater than the minimum required in Rule
Part 139.
[39] The decision under challenge is, of course, the
Director’s decision that 90m RESAs in relation to the
proposed southern extension to the runway were
acceptable to him. Unsurprisingly, he adopted the
same approach as he had in relation to a possible
northern extension. In the file note dated 20 March
2015 setting out the basis for his decision, the
Director summarised the background as follows:34
31
See above at [16].
32
See above at [9].
33
See above at [6]-[8].
34
See above at [10].
31
F-83
Wellington airport has advised that it is considering
an extension of its runway to the south into Cook
Strait. They have advised that if they proceed with
the extension they will be providing 90m RESAs in
satisfaction of the requirements of CAR 139.101(4)
with respect to the design requirements in
139.51(b) [and Appendix A].
While that decision is legitimately theirs, they have
asked for an indication from the Director whether I
would find such RESA acceptable in accordance
with 139.51(c). As I understand it, they have asked
for my view on this matter because they need
certainty in relation to what they are proposing to
construct for the necessary resource management,
construction and planning approvals.
[40] The Director’s reasoning, which drew heavily
on the final report provided by McGregor,
contained two elements:
(a) First, he considered that a 90 m RESA provided an
acceptable level of safety at the airport “in light of
the nature of operations, their frequency, the type of
aircraft using the aerodrome, and the consequent
risk attendant upon these operations”. He
concluded that the McGregor cost/benefit
analysis showed a “very low risk of overrun or
undershoot occurrences at Wellington airport”.
(b) Second, he considered, on the basis of the
McGregor cost/benefit analysis, that WIAL had
appropriately assessed that longer alternatives to 90
m RESAs were not “practicable” because although
there were additional safety benefits from
extending the RESAs beyond 90 m, these were
significantly outweighed by the costs involved.
As to the possibility of employing an EMAS as
an alternative to a longer RESA to provide
additional safety benefits, the Director said that
he had not considered that as it was not part of
WIAL’s “decision”, so that he did not have any
information to assess. He also said that he did not
need to consider the use of an EMAS because a 90m
RESA was acceptable to him.35
35
The latter point was consistent with advice provided to
him by Authority personnel. That advice expressed the
view that the issue of EMAS only arose if the Director
was to find that WIAL’s proposal did not meet the
RESA requirements in Appendix A.1 to pt 139 and if the
Director considered that the inclusion of an EMAS
would contribute to the requirements being met.
Law Animated World, 28 February 2018
F-84 WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
[41] In his file note, the Director described the
approach he took to “practicability”:
That approach [to practicability] involves the
following:
♠ Practicability should be interpreted as
incorporating elements of feasibility and
reasonableness; some element of pragmatic
limitation must be applied;
♠ “practicable” does not equate to “that which is
possible”;
♠ The test of practicability involves balancing
safety benefits to be achieved against
associated cost and difficulty.
The fact that rule compliance may involve significant
cost or the allocation of significant resources does not of
itself mean that compliance is “impracticable”; instead
the cost and difficulty must be carefully weighed against
the safety benefits to be achieved.
[42] Finally, the Director noted that his view was
based on the cost and other information provided
to him by WIAL. If “things were to change
materially” he would need to re-visit his decision.
As the current proposal is to extend the runway
by 355m into Lyall Bay, WIAL will presumably
have to approach the Director again to obtain an
indication of acceptance.
THE DISPUTE
[43] Principally at issue is the second of the two
mandatory requirements in Appendix A.1(a) to pt
139, namely that, “if practicable”, a RESA must
extend to at least 240m (or to whatever distance
between 90 and 240 m that is “practicable” from the
end of the runway strip). While there were several
differences between the parties, the essential
difference was whether “practicable” meant feasible
in a physical sense, with cost coming into play
when extreme, or whether it meant reasonably
practicable assessed on a cost/benefit basis. This in
turn raised questions as to the effect of the 2004
Amendment Act and the precise role of the Director
when assessing RESA proposals by airport
operators.
[44] The Director, supported by WIAL, maintains
the interpretation of “practicable” set out in the file
note of his decision,36 an interpretation accepted in
36
See above at [39]–[42].
Law Animated World, 28 February 2018
32
(2018) 1 LAW
the High Court by Clark J.37 The Judge rejected
NZALPA’s contention that practicability is a question of
what is physically feasible. She said:
[75] Ascertaining the practicability of the length of
a runway end safety area will require a case by case
assessment engaging a range of complex factors
which will encompass:
– elements of physical feasibility, and
reasonableness – because the unvarnished
formulain Appendix A.1(a) does import an
element of pragmatic limitation. Simply
because something is possible does not mean
it is practicable in all contexts.
– a balancing exercise in which safety
considerations will be weighed against the
cost and difficulty of extending a runway end
safety area.
– potentially a cost-benefit analysis which may
be an aspect of a safety case.
(footnote omitted)
The Judge considered that the Director had
summarised the information on which he relied in his
file note and explained his decision.38 She found that
the decision was not reached in error of law.
Relevantly, the Director’s approach to what was
“practicable” was not flawed as it accorded with the
approach that the Judge considered permissible.39 In
addition, he was not in error in balancing safety
benefits of RESAs longer than 90 m against the
associated cost and difficulty of providing them.40 The
Director had also not been in error in relying on the
economic cost/benefit analysis undertaken in the
updated McGregor report.41
[45] By contrast, NZALPA’s position throughout has
been that “practicable” refers to what is physically
feasible or what is able to be constructed; it does not
mean what was reasonable on the basis of a cost/benefit
analysis. This view was accepted by the Court of Appeal.42
First, the Court said that the word “practicable”
had a well-known meaning:43
37
NZALPA(HC), above n 4.
38
At [103].
39
At [98]–[108].
40
At [105].
41
At [109]–[123].
42
NZALPA(CA), above n 5.
43
At [52] (footnote omitted).
(2018) 1 LAW WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
… as something that is feasible or able to be
accomplished according to known means and resources;
it links the feasibility or practicality of something
to the availability of resources.When dealing with
the construction of an aerodrome runway, “practicable”
must refer to what is actually able to be constructed,
importing considerations of practical issues such as the
nature of the site and surrounding physical
environment, available engineering technology
and potential construction options.
Second, it said that the word “practicable” imports a
stricter or higher standard than the words “reasonably
practicable”.44 While cost had a part to play in the
determination of what is “practicable”, its role
was a limited one, as where cost makes an
objective “economically infeasible or
impracticable, which WIAL does not contend for
here”.45 Following the changes effected by the 2004
Amendment Act, “reasonable cost” was a factor of
subordinate importance.46
[46] Third, the Court of Appeal rejected the notion
that the Chicago Convention provided states with
considerable flexibility – any flexibility was “limited
and constrained”.47 Quite apart from that, it was
the language of Appendix A.1(a)(2) to pt 139
that was important and it was unequivocal –“must
extend … if practicable” to a distance of at least
240 m.48
[47] Finally, the Court considered that the fact that
cost was a relevant consideration under s 33(2) in
relation to rule-making meant that it was not relevant
when the rule was being implemented because “the
costs of implementation are already accepted as
part of the rule”.49 Moreover, the Court said that
the fact that the words “where physically
practicable” were used in another Appendix to pt
139 of the Rules did not indicate that a broader
view of practicability was intended where
“practicable” was used on its own.50
44
At [53].
45
At [54].
46
At [54].
47
At [56].
48
At [60].
49
At [62].
50
At [63].
33
F-85
EVALUATION
[48] We will structure our discussion in the
following way. First we discuss the effect of the
2004 Amendment Act. Then we address the
relationship between the Director and an airport
operator. Next we turn to the meaning of
“practicable”. Finally, we draw the threads together.
Effect of 2004 Amendment Act
[49] The Court of Appeal saw the changes brought
about by the 2004 Amendment Act as “discarding the
existing two-factor analysis of balancing safety against
cost”51 and increasing the emphasis on promoting
aviation safety.52 This was a significant factor in its
reasoning. Mr Rennie QC for NZALPA submitted
that the Court was correct in this.
[50] To recap, when work commenced on the
revision of the Civil Aviation Rules after the
inclusion by the ICAO of the new provisions on
RESAs in Annex 14 in 1999,53 the original s 14 was
in force. It required the Minister, when exercising
his or her functions under the Act, to promote safety
in civil aviation at a reasonable cost, a reasonable
cost being assessed on the basis of a nationally
oriented cost/benefit analysis.54 The 2002
McGregor report was prepared with that focus.55
However, by the time that pt139 was amended in
2006, the 2004 Amendment Act had come into
effect.
[51] As is clear from the explanatory note to the
Bill, the 2004 Amendment Act implemented
aspects ofthe New Zealand Transport Strategy (the
Strategy).56 The replacement of the original s 14
with the current ss 14 and 14A (setting out the
Minister’s objectives and functions respectively)57
and the introduction of s72AA and the amendments
to s 72B (setting out the Authority’s objective and
51
At [17], citing NZALPA (HC), above n 4, at [28].
52
At [17]–[18].
53
See above at [15]–[16].
54
See above at [19].
55
See above at [31].
56
Transport Legislation Bill 2004 (172-1) (explanatory
note) at 1.
57
See above at [20]–[22].
Law Animated World, 28 February 2018
F-86 WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
modifying its functions respectively)58 were
intended to “align” the legislation with the
Strategy.59 Importantly, the explanatory note
explains that the amendments to s 33 (matters to be
taken into account in making rules) were also
intended to align that section with the Strategy.60
[52] The Strategy was published in December
2002. It summarised the background as follows:61
Historically, investment in transport in New
Zealand has been heavily dependent on government
funding. Public investment helped establish an
extensive network of roads, railways, ports and
airports. These evolved and developed under a
mode-based regulatory structure and, in time,
separate government entities (central and local)
owned road, rail, ports, shipping lines, airports and
airlines. The country’s geography, small
population size and low population density, and the
development of a strong commodity-based
economy, have significantly influenced the
development of the transport system.
Beginning in 1983, the transport sector was
systematically deregulated. Central and local
government interests in the aviation, rail and
maritime sectors were corporatised. Many were
sold or partly privatised. However, the changes of
the 1980s and 1990s have not delivered all the
results expected of them.While economic efficiency
was increased, these changes by and large ignored
the broader linkages between transport and other
issues such as regional development, urban form
and social cohesion. (emphasis added)
[53] The Strategy was underpinned by four principles
– sustainability, integration, safety and responsiveness.62
These principles are presently reflected in the
language of ss 14(a) and 72AA of the Act. The
Strategy identified the Government’s objectives for
transport as being assisting economic development,
assisting safety and personal security, improving access
and mobility, protecting and promoting public health
and ensuring environmental sustainability.63 The
58
See above at [23].
59
Transport Legislation Bill, above n 56, at 3–4.
60
At 4.
61
New Zealand Transport Strategy, above n 17, at 4–6.
62
At 2.
63
At 8.
Law Animated World, 28 February 2018
34
(2018) 1 LAW
language of these objectives is reflected in
s33(2)(e) and (f) in relation to rule-making and in
s72I(3)(c) in relation to the Director’s functions
and powers.
[54] As its text indicates, the implementation of
efficient resource use policies remained important
under the Strategy.64 This is reflected in the
insertion of para(fa) into s 33(2) by the 2004
Amendment Act, which makes the costs of
implementing measures for which a rule is being
proposed a mandatory relevant consideration in rule-
making.65 Other mandatory relevant considerations
concern risk: s 33(2)(b) refers to “the level of risk
existing to aviation safety in each proposed
activity or service” and (d) to “the level of risk
existing to aviation safety and security in
NewZealand in general”. But for present purposes
the critical point is that the Strategy undoubtedly had a
focus that was both different and broader than the
cost/benefit approach that underpinned the Act as
originally enacted and that changed focus can be
seen in the language of a number of the
amendments to the Act in 2004.
[55] This change in focus was relevant to the
Minister when he promulgated the new Rules in
relation to RESAs in 2006.66 When presenting the
final version of the Rules to the Minister for
promulgation, the then Director noted that although
in the development and consultation stages of the
Rules the Strategy had not been taken into account
as it was not in force, the final version of the Rules
had been assessed against the Strategy. The
Director noted that the objective of the new pt 139
was to improve aviation safetyby incorporating the
Annex 14 RESA requirements. He described how
the new Rules fitted in with each of the
considerations identified in the amended s33(2),
which presumably gave the Minister some
assurance that the Rules were appropriate to the
new statutory environment.
64
As Mr Goddard QC for WIAL noted, for example, the
description of “sustainability” refers to being guided “by
medium-and long-term costs and benefits”: New Zealand
Transport Strategy, above n 17, at 2.
65
See above at [27].
66
See above at [35].
(2018) 1 LAW WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
[56] We agree with the Court of Appeal that an
important effect of the 2004 Amendment Act was to give
greater emphasis to the promotion of aviation safety –
promoting aviation safety is a purpose of the Act;
it is the first-identified function of both the
Minister and the Authority; and it is a mandatory
relevant consideration in rule-making. Promoting safety
is, however, not the same as guaranteeing that there will
never be any accidents. Generally speaking, “safety”
is about reducing risk, not eliminating it. Prior to
the 2004 Amendment Act, an acceptable level of
risk was to be determined on the basis of a
national cost/benefit analysis, balancing cost
against safety benefits in the form of avoided
accidents. Following the 2004Amendment Act, a
wider range of considerations became relevant to
that determination, at least in the context of rule-
making – cost remained relevant but it was only one of
a number of mandatory relevant considerations.
[57] An issue for the Court is the relevance, if any, of
this new statutory environment implementing the
Strategy to the Director’s decision as to the acceptability
of a RESA under r139.51(c) of the Rules. Neither the
Act nor the Rules explicitly address the basis on
which the Director should make his decision as to
acceptability (beyond identifying the test of
practicability for RESAs over 90 m). Although s
72I was amended by the 2004 Amendment Act to
reflect the Strategy, it sets out the Director’s
powers and functions rather than identifying
relevant considerations in relation to the exercise
of decision-making powers.67 Nevertheless, in
exercising some of his functions at least, the Director
must act within the framework of the purposes and
principles reflected in the statutory changes made to
implement the Strategy. The Rules were made under
the amended s 33, in light of the mandatory
considerations set out in s33(2). The concept of
what is “practicable” in Appendix A.1 to pt139 must be
viewed in that overall context, rather than simply
through a narrow cost/benefit lens.
Relationship between Director and airport operator
[58] The question here is whether the Director’s
role is a reactive one, in the sense that the
67
See above at [24]and [53].
35
F-87
Director simply considers the proposal that an
airport operator puts forward and (subject to the
ability to seek further information) determines
whether or not he or she finds it acceptable; or
whether the Director has a more active regulatory role,
one that may involve the active identification of
alternatives to what the airport operator has proposed.
[59] Mr Cooke QC for the Director described the
New Zealand aviation system as being a devolved
one. In this context, that meant that WIAL as the
airport operator decided how it would meet its
obligations as to RESAs and the Director assessed
whether its choice was acceptable to him. This
approach is reflected at two points in the Director’s
file note recording his decision on WIAL’s southern
extension application. First, in setting out the
background, he describes that WIAL advised it was
considering extending the runway and that it would
provide a 90 m RESA in satisfaction of the RESA
requirements in the Rules. He then says that “[w]hile
that decision is legitimately theirs”, WIAL sought an
indication as to whether he would find a 90 m
RESA acceptable under r139.51(c). Second, and
more starkly, the Director said that he did not
consider the possible use of an EMAS (as NZALPA
had suggested in consultations) because it was not part
of WIAL’s “decision” about the extension and, as a
result, he had no information to assess.68
[60] Under the Act airport operators must hold an
“aviation document”, which is an authority to operate
the airport.69 The operator must comply with,
among other things, rules made under the Act.70
The Rules require an applicant for the grant of an
aerodrome operator certificate to ensure that it
has RESAs which comply with the requirements
in Appendix A.1 if it operates a qualifying
airport, subject to the additional requirement
under r 139.51(c) that any RESA be acceptable to
the Director.71 The requirement for the Director’s
acceptance appears to reflect two considerations:
68
He also said that he saw no need to consider it given that a
90 m RESA was acceptable to him. See above at [39]-[42].
69
Civil Aviation Act, s 12 and see the definition of
“aviation document” in s 2.
70
Section 12(2).
71
See above at [36].
Law Animated World, 28 February 2018
F-88 WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
a) First, the obligations as to RESAs are ultimately
New Zealand’s obligations as a signatory to the
Chicago Convention. It makes sense, then, that
the person with the ultimate say on the length
of a RESA should be a regulator.
(b) Second, the practicability test under Annex 14 of
the Chicago Convention and Appendix A.1 to pt 139
can be assessed in different ways, both generally
and in specific contexts. As the 2002 McGregor
report pointed out, the incentives and interests of
airport operators and regulators do not always
coincide. Clearly, in promulgating the Rules,
the Minister considered that an airport
operator’s decision as to RESA length should
be subject to independent regulatory scrutiny.
The question is, what is the basis of that scrutiny?
[61] We accept that the system is a devolved one in
the sense that airport operators and other participants
in the aviation industry have the ability to make
decisions within a framework of statutory and other
responsibilities that they are expected to meet. In this
context, though, the Director must determine
whether what an airport operator proposes is
acceptable to him or her. This means that the
Director must assess any proposal against the
requirements of the relevant rules. In this case,
Appendix A.1 requires a RESA of at least 240 m
“if practicable”, or any length between 240 m and
90 m that is practicable, subject to an absolute
minimum of 90 m (whether practicable or not,
given that New Zealand has not notified a
difference). As the Court of Appeal said, the
starting point under the Rules is not what the airport
operator proposes but what the Rules require and that
should be the Director’s focus.
[62] Mr Cooke argued that this was simply a
matter of semantics as the Director had
considered whether RESAs longer than 90 m
were practicable. We do not agree with that
characterisation. To repeat, the Director’s
responsibility is to enforce the requirements of r
139.51(b) and Appendix A.1. They require a RESA
of at least 240m if practicable. That should be the
starting point. If a RESA of that length is impracticable,
the Director must consider whether a length between
240 and 90 m is practicable. Only if it is not is a 90
m RESA acceptable. Starting with what the Rules
require rather than with what the airport operator
Law Animated World, 28 February 2018
36
(2018) 1 LAW
proposes is not an inconsequential difference of
approach. Rather, it is a matter of mindset, and the
Director’s mindset in this case is illustrated by his
first reason for refusing to consider an EMAS
solution, namely because it was not part of
WIAL’s “decision”, so that he did not have any
information about it. It may be that an EMAS is
not a viable technique at Wellington and could be
quickly dismissed, but the Director did not turn
his mind to its merits even though it was a matter
raised by NZALPA in the course of
consultations.72 He did not see that as part of his
function, which was, as he perceived it, focussed
on assessing what WIAL had proposed. This is
an erroneous approach.
Meaning of “practicable”
[63] As it emerges from the decisions of the High
Court and Court of Appeal, the question here is
whether the concept of practicability focusses on what is
physically feasible, with cost coming into play at the
extreme, or whether the concept means what can
reasonably be required, balancing the cost to the airport
operator against safety benefits to be achieved. We
consider that “practicability” in this context requires a
more nuanced approach.
[64] The material which was before the Director and
formed the basis of his view that 90 m RESAs were
acceptable to him if WIAL were to extend the
runway either to the north or to the south were
cost/benefit analyses, confined to assessing the
benefits to safety and the cost to WIAL of longer RESAs
at Wellington. As we have already noted, the
72
Counsel for the Director and WIAL argued that the
possibility of installing an EMAS could not be a
mandatory relevant consideration. Unlike Annex 14 of
the Chicago Convention, the Rules do not refer to EMAS
and, bearing in mind that 90 m RESAs are required at
Wellington, an EMAS would be a way of reducing the
length of a longer RESA, which would bring it within
the category of a recommendation rather than a standard
under Annex 14. However, the Director consulted with
NZALPA. NZALPA suggested an EMAS as an option,
which the Director did not consider in part because
WIAL had not proposed it, so that he had no
information. This reflects a misunderstanding of his role
vis à vis an airport operator: see above at [62].
(2018) 1 LAW WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
Director said that practicability would come
down:73
… to a balancing exercise in which safety
considerations (benefits) are weighed against the
cost and difficulty of providing a RESA length
greater than the minimum required in Rule Part
139.
That is very much the language of a cost/benefit
analysis.
[65] “Practicable” is a word that takes its colour from
the context in which it is used. In some contexts, the
focus is on what is able to be done physically; in
others, the focus is more on what can reasonably
be done in the particular circumstances, taking a
range of factors into account. Unlike the Court of
Appeal, we do not find the dictionary definitions
of much assistance given the flexibility of the
word and the importance of context to
determining its meaning.74 Rather, we consider
that the assessment of what is “practicable” must take
account of the particular context of Appendix A.1 and
the statutory framework that produced it and will
depend on the particular circumstances of the relevant
airport, including the context in which the request for
the Director’s acceptance is made.
[66] Counsel for the Director and for WIAL
argued that if a 90 m RESA was not acceptable
for an extended runway, it was therefore not
acceptable for the runway as presently
configured. They pointed out that, in physical
terms, longer RESAs could readily be required
and provided at the airport at the moment, by the
simple expedient of painting on RESAs ofthe
relevant length and reducing the declared distance
of the runway (that is, shortening the available
runway). The consequence would be that some
planes that presently use the airport would not be
able to do so, or could do so only if more lightly
laden. Counsel emphasised that the cost of such a
solution should include WIAL’s opportunity
costs from the necessary changes in use of the
runway.
73
See above at [38].
74
See above at [45].
37
F-89
[67] We do not accept the hypothesis that the
Director’s determination in relation to a proposal
to extend the runway has necessary consequences
for current, previously accepted arrangements at
the airport. This is because we consider that what
is “practicable” must be assessed in the particular
context in which the issue is raised. We consider
that different considerations are engaged where
the issue of RESA length arises in the context of
a proposal to substantially increase the length of
the runway by reclamation so as to increase the
airport’s capacity than where it arises in the
context of an existing operation with significant
physical constraints. In some environments, it
may not be “practicable” to require an extension
to an existing runway for the sole purpose of
creating a longer RESA; but it may be
“practicable” to require a longer RESA as part of
a larger project to enhance the capacity of the
airport by lengthening the runway. We do accept
the point that WIAL’s opportunity costs in the
hypothetical example are relevant to the analysis
of cost. However, that raises the question why what
may be described as opportunity benefits to an airport
operator of a particular proposal should not also be
taken into account when assessing what is “practicable”.
[68] As the 2002 McGregor report noted,
economic development benefits may be intangible and
so not accounted for in a cost/benefit analysis. As we
have said, the Act has the promotion of safety in civil
aviation as one of its purposes and as the first of the
functions of the Minister and of the Authority; it
identifies improving aviation safety as a
mandatory relevant consideration in rule-
making.75 Against that background, the broader
benefits to the airport operator may be relevant to
the Director’s decision-making. If, for example,
an extension to a runway would make available to
an airport operator a new and substantial income
stream, that additional benefit accruing to the
operator may mean that a longer RESA is
“practicable”, given that it is accepted that a
longer RESA will enhance safety by reducing
risk.
75
See above at [56].
Law Animated World, 28 February 2018
F-90 WIAL v. New Zealand Airline Pilots Assn. & Anr. [NZ-SC]
[69] One of the mandatory relevant considerations
identified in s 33(2) for rule-making is whether a
proposed rule assists economic development. We
should make it clear that we are not suggesting
that the Director must somehow take into account
the benefits to a particular region that may flow
from a longer runway (although we note that
WIAL did invoke the substantial benefit to the
Wellington region when seeking the Director’s
acceptance of a 90 m RESA for the northern
extension).76 We are concerned here with
determining the approach to what is “practicable”
for the purposes of Appendix A.1. We consider
that it is not consistent with the Act as it presently
stands to assess practicability solely by reference
to WIAL’s costs as balanced against the increased
level of safety that would result. We see WIAL’s
intended benefits as being relevant to the practicability
analysis as well.
Drawing the threads together
[70] How, then, does all this come together? We
agree with the Court of Appeal that following the
2004 Amendment Act, the Act’s focus shifted. Promoting
safety in civil aviation at a reasonable cost was no longer
the core principle. Rather, a different framework
was introduced for both the Minister and the
Authority, involving new objectives and revised
functions. The Minister had four functions, the
first of which was to promote safety in civil
aviation; the Authority had more functions but
again, the first was to promote civil aviation
safety and security in New Zealand. The words “at
a reasonable cost” were removed. This focus on the
promotion of safety per se carried over into the
identification of matters to be taken into account in
making rules in s 33. Besides risk and cost, the
mandatory relevant considerations include (among
other things) the need to improve aviation safety.
[71] We do not agree with the limited role that the
Court of Appeal has assigned to cost when practicability
is assessed. We accept that a cost/benefit analysis
may provide assistance to the Director in reaching
a determination as to what RESA length is
acceptable to him. But such an analysis is simply a
76
See above at [6].
Law Animated World, 28 February 2018
38
(2018) 1 LAW
tool, as McGregor was careful to point out in its
2002 report, and it is an incomplete tool in the
context of the Act as it currently stands. By basing his
decision on a cost/benefitanalysis, the Director
acted as if the Act had not been amended in 2004. To
that extent, we consider he erred in law. He was
required to consider whether safety could be
improved, and in considering that ought to have
considered benefits accruing to WIAL as a result of the
extension; in this instance, they are relevant to the
practicability assessment and it is possible that
they are such as to justify him requiring an
incremental improvement in safety in the form of
a RESA longer than 90 m.77 We also consider that
the Director erred in his starting point, by focussing on
WIAL’s proposal rather than the requirements of
Appendix A.1, and in not turning his mind to EMAS
because it was not part of WIAL’s “decision”.
RESULT
[72] Although our reasoning differs in some
respects from that of the Court of Appeal, we
agree that the Director erred in law. Accordingly, we
dismiss the appeals. As we understand it, WIAL’s
current extension proposal will require a further
acceptance from the Director. The Director
should consider that application in the light of the
Court’s reasoning. The Director and WIAL are
jointly and severally liable to pay costs of $30,000 to
NZALPA, plus reasonable disbursements to be
determined by the Registrar if necessary.78 We allow
for second counsel.
Solicitors:
Chapman Tripp, Wellington for Appellant
SC 26/2017 and Second Respondent SC 30/2017
R R McCabe, New Zealand Air Line Pilots’ Association
Industrial Union of Workers Incorporated, Auckland for
FirstRespondent SC 26/2017 and SC30/2017
J G Sneyd, Civil Aviation Authority, Wellington
for Second Respondent SC 26/2017
and Appellant SC30/2017
Russell McVeagh, Wellington
for Intervener SC 26/2017 and SC 30/2017
*****
77
We express no view one way or the other about whether
this is in fact the case.
78
To reflect a hearing of a day and a half.
(2018) 1 LAW M.K. Radhi v. District Court Manukau & Anr. [NZ-SC] F-91

(2018) 1 LAW F-91 (NZ-SC) The Commonwealth of Australia alleges that in

IN THE SUPREME COURT OF 2001 Mr Radhi was involved in helping asylum
seekers sail from Indonesia to Australia in a vessel
NEW ZEALAND AT WELLINGTON known as the SIEV-X. The vessel sank and an estimated
S.C. 57/2017 300 lives were lost. The Commonwealth seek Mr Radhi’s
Dated: Thursday, 21 DECEMBER 2017 extradition to stand trial for people-smuggling. Two
others have been tried and convicted for their
BETWEEN: involvement in these events, one in Egypt and the
Maythem Kamil Radhi … Appellant other in Australia.
and In 2014, after a defended hearing in the District
The District Court at Manukau & the Court and subsequent appeals, the Commonwealth
Commonwealth of Australia … Respondents. obtained an order from the District Court that Mr
Radhi was eligible for surrender. Mr Radhi then
Court: William Young, Glazebrook, OʼRegan,
applied to the District Court for an order under s
Ellen France and McGrath JJ
48(4)(a)(ii) of the Extradition Act 1999 that his
Counsel: case be referred to the Minister of Justice. That
R M Mansfield for Appellant subsection provides for referral if:
D L Harris abiding for 1st Respondent
“because of compelling or extraordinary
M J Lillico and R K Thomson for 2nd Respondent
circumstances of the person, including, without
Citation: M.K. Radhi v. District Court Manukau & Anr.♣ limitation, those relating to the age or health of
(2018) 1 LAW F-91 (NZ-SC) = [2017] NZSC 198 the person, it would be unjust or oppressive to
surrender the person before the expiration of a
*** particular period”
Supreme Court of New Zealand
If Mr Radhi’s case is not referred to the Minister, he
Te Kōti Mana Nui will be extradited to Australia to stand trial.
21 December 2017
The District Court declined to refer Mr Radhi’s case
Maythem Kamil Radhi v The District Court at to the Minister. Mr Radhi’s application for judicial
Manukau & the Commonwealth of Australia
(SC 57/2017)
review in the High Court was unsuccessful, as
[2017] NZSC 198 was his appeal to the Court of Appeal.
PRESS SUMMARY The Supreme Court granted Mr Radhi leave to
appeal on the question whether the Court of Appeal was
The Court of Appeal order prohibiting publication of
correct to conclude that the circumstances of Mr Radhi
names or identifying particulars of Mr Radhi’s wife and
did not warrant a reference to the Minister under s
children remains in force.
48(4)(a)(ii) of the Extradition Act.
Mr Radhi is a 41-year-old refugee from Iraq. He has
lived in New Zealand with his wife and three children The Supreme Court has, by a majority comprising
since 2009 when they were accepted for William Young, Glazebrook and O’Regan JJ,
resettlement in this country. allowed Mr Radhi’s appeal and decided to refer his case
to the Minister.
♣
Courtesy: Supreme Court of New Zealand – this summary If Mr Radhi is found guilty and sentenced to a term of
is provided to assist in the understanding of the Court’s imprisonment of 12 months or more, he would be
judgment. It does not comprise part of the reasons for that classed as an “excluded person” under the New Zealand
judgment. The full judgment with reasons is the only Immigration Act 2009. In that event, there is no room
authoritative document. The full text of the judgment and for confidence that he would be permitted to return to
reasons can be found at Judicial Decisions of Public
New Zealand. He would not be returned to Iraq
Interest www.courtsofnz.govt.nz (reproduced by us after
this summary); Emphases in bold ours - IMS. because of Australia’s non-refoulment

Law Animated World, 28 February 2018

39
F-92 M.K. Radhi v. District Court Manukau & Anr. [NZ-SC] (2018) 1 LAW

obligations.1 But although practically unable to leave IN THE SUPREME COURT OF

Australia, he would have no legal entitlement to remain
there and would thus be subject to mandatory detention
NEW ZEALAND AT WELLINGTON
until he is either granted a visa or removed from S.C. 57/2017
Australia. Such detention would be open-ended in Dated: Thursday, 21 DECEMBER 2017
duration and there would be no right of access to the
BETWEEN:
Australian courts to challenge it other than on
MAYTHEM KAMIL RADHI … Appellant
formal grounds of illegality. It would, in all
AND
probability, last for a number of years.
THE DISTRICT COURT AT
Removal from home and separation from family are MANUKAU … 1st Respondent
part and parcel of the extradition process. So too is the
THE COMMONWEALTH OF
risk of being subject to imprisonment following trial.
AUSTRALIA … 2nd Respondent.
But in almost all instances of extradition, the
[2017] NZSC 198 = (2018) 1 LAW F-94 (NZ-SC)
extradited person will be free to pick up his or her
life either at the end of the trial (if acquitted) or, Hearing: 11 October 2017 & 22 November 2017
at worst, at the conclusion of any sentence Court: William Young, Glazebrook, OʼRegan,
imposed following conviction. It is not customary Ellen France and McGrath JJ
for such persons, once free of the criminal justice
Counsel:
system, to be subject to the risks of immigration
limbo of the kind postulated. The risks of R M Mansfield for Appellant
immigration limbo could be avoided by the New D L Harris abiding for 1st Respondent
Zealand Minister of Immigration granting Mr Radhi a M J Lillico and R K Thomson for 2nd Respondent
visa which would permit him to return to New Judgment: 21 December 2017
Zealand once the criminal justice process in JUDGMENT OF THE COURT
Australia has finished.
A. The appeal is allowed.
In the majority’s view, the circumstances of
B. The appellant’s case is referred to the Minister
Mr Radhi which render this outcome possible are
of Justice pursuant to s 48(4)(a)(ii) of the
“compelling or extraordinary” and mean that it
Extradition Act 1999.
would be unjust or oppressive to surrender him to
Australia before the New Zealand Minister of C. Costs are reserved.
Immigration has had the opportunity to consider the ***
immigration limbo issue. REASONS
Ellen France and McGrath JJ dissented. They
considered that s 48(4)(a)(ii) had a narrower WILLIAM YOUNG J [1]
focus, applying only to immediate circumstances GLAZEBROOK AND O’REGAN JJ [66]
of the person which would make it unjust or
oppressive to surrender them before “the ELLEN FRANCE AND McGRATH JJ [12]
expiration of a particular period”. They did not
consider that Mr Radhi’s circumstances WILLIAM YOUNG J
comprised a condition of the sort envisaged in s Table of Contents
48(4)(a)(ii).
*** Para No.

1
The Appeal [1]
A principle of international law that protects refugees or
asylum seekers from being returned to a country in which The factual context [3]
they are liable to be subjected to persecution.

Law Animated World, 28 February 2018

40
(2018) 1 LAW M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.]
Table of Contents contd...
Legislative context [15]
Procedural history of the case [28]
The judgment of the Court of Appeal [35]
My approach [37]
No consideration was given to Mr Radhi’s
position should he be unable to obtain a [37]
visa to return to New Zealand
Section 22 of the New Zealand Bill of
Rights Act 1990 and art 9.1 of the
International Covenant on Civil and
[39]
Political Rights
Is the susceptibility of Mr Radhi to
indefinite administrative detention a
“compelling or extraordinary” [50]
circumstance “of the person” for the
purposes of s 48(4)(a)(ii)?
What is the likelihood of Mr Radhi not
being able to return to New Zealand?
[52]
Can the risks to Mr Radhi be removed? [56]
Disposition [57]
***
THE APPEAL
[1] Maythem Radhi is a refugee who lives in New
Zealand with his wife and three children. The
Commonwealth of Australia alleges that in 2001
he was involved in helping asylum seekers sail
from Indonesia to Australia in a vessel known as
the SIEV-X11 and seeks his extradition to stand
trial for people-smuggling. The SIEV-X sank
with the result that an estimated 300 lives were
lost. Two others have been tried and convicted for
their involvement in these events, one in Egypt
and the other (Mr Khaleed Daoed, to whom we
will return shortly) in Australia.
[2] After a defended hearing in the District Court
and subsequent appeals, the Commonwealth
1 5
SIEV is an acronym for Suspected Illegal Entry Vessel.
So SIEV-X is the name attributed to the vessel by the
Australian authorities.
41
F-93
obtained an order from the District Court that Mr
Radhi was eligible for surrender.2 At this point,
Mr Radhi applied to the District Court for an
order that his case be referred to the Minister of
Justice because of compelling or extraordinary
circumstances.3 That application failed. He then
applied for judicial review to the High Court, and
the application was dismissed.4 His appeal to the
Court of Appeal against that decision was
unsuccessful.5
THE FACTUAL CONTEXT
[3] Mr Radhi is now 41 years old. He was born in
Iraq and is a member of a persecuted ethno-
religious minority. In early 2000 he escaped Iraq
and subsequently the United Nations High
Commissioner for Refugees recognised him, his
wife and their two children as refugees. In early
2009 Mr Radhi, his wife and their children were
accepted for resettlement in New Zealand. They
moved here later the same year. Mr and Mrs
Radhi’s third child was born in New Zealand and
is a New Zealand citizen. Mrs Radhi and the two
older children are now also New Zealand citizens.
[4] If Mr Radhi is extradited to Australia, his wife
and children would have the legal right to go to
Australia but there are financial constraints which
would make it very difficult for them to do so.
They would have difficulty raising the money to
visit Mr Radhi and they would have major
difficulties supporting themselves in Australia.
[5] Mr Radhi currently holds a New Zealand
residence visa and continues to be recognised in
New Zealand as a refugee. His residence visa does
2
New Zealand Police v Radhi DC Manukau CRI-2011-92-
11423, 19 March 2012; Radhi v New Zealand Police
[2013] NZHC 163; New Zealand Police v Radhi [2014]
NZCA 327, [2014] NZAR 1019; and Radhi v New
Zealand Police [2014] NZSC 135.
3
Police v Radhi [2015] NZDC 7576 (Judge Moses).
4
Radhi v District Court at Manukau [2015] NZHC 3347
(Woolford J).
Radhi v District Court at Manukau [2017] NZCA 157,
[2017] NZAR 692 (Miller, Cooper and Asher JJ) [Radhi
(CA)].
Law Animated World, 28 February 2018
F-94 M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.] (2018) 1 LAW
not allow him to travel, and extradition would cause his
visa to expire. But:
(a) It is open to him to apply, before leaving New
Zealand, for a variation of his visa conditions to
allow him to leave the country for a period not
exceeding 24 months. Under the policy of
Immigration New Zealand this application could
not be declined.
(b) There is also provision under the policy for a
further 12 month extension to the two year
period. This is usually only granted if the
applicant has been present in New Zealand for a
specified amount of time in the 24 months
immediately preceding the application for a
variation. This presence in New Zealand
requirement can be dispensed with, but only at
the absolute discretion of the decision maker.
[6] If Mr Radhi is extradited but is acquitted at
trial it is plausible to assume that he will be able
to return to New Zealand. He would be able to do
so as of right if the proceedings take less than two
years. And even if they take longer to resolve, it
would seem probable, although it is not certain,
that the discretions associated with the obtaining
of a visa would be exercised in his favour. And if
unable to obtain a visa, he would have a right of
appeal,6 although no right of review.7
[7] On the other hand, if Mr Radhi were to be found
guilty, his ability to return to New Zealand will be
uncertain. If he is found guilty it is practically
inevitable that he will be sentenced to a lengthy
term of imprisonment.8 If sentenced to
6
Immigration Act 2009, s 187(1)(a)(i). The appeal is to the
Immigration Tribunal. The jurisdiction of the Tribunal in
respect of such an appeal is provided for in s 187(4) with
the primary focus being on the conformity of the
decision with the relevant residence instructions but the
Tribunal has power to recommend that special
circumstances of the applicant warrant consideration by
the Minister (see ss 187(4)(b) and 188(1)(f)). There
appears to be no right of appeal in relation to the
decision by the Minister in respect of such a
recommendation and there would be no right of review:
see ss 187(8)(a) and 187(2)(a).
7
Section 187(8)(a).
8
We understand that Mr Daoed was sentenced to nine
years’ imprisonment.
Law Animated World, 28 February 2018
42
imprisonment for 12 months or more, he will be
an excluded person under s 15 of the Immigration
Act 2009.9 This section provides that no visa or
entry permission may be granted and no visa
waiver applied to an excluded person. His ability
to return to New Zealand would depend upon him
obtaining a special direction from the Minister
under ss 17(1)(a) and 72(3). If the Minister
refused to grant such a direction, there would be
no right of appeal or review against what would
be the associated dismissal of the application for
the residence visa in respect of which the special
direction was sought.10 Conceivably he might
have a right of review in respect of the special
direction decision, but this is uncertain.
[8] Assuming that Mr Radhi is not able to return
to New Zealand, his position in Australia will be
awkward.
[9] During the period after Mr Radhi arrives in
Australia until the end of the process (including any
sentence imposed) Mr Radhi will be lawfully in
Australia under what is known as a criminal justice
visa.11 But, at the end of the process, Mr Radhi will be
unlawfully in Australia12 and will thus be mandatorily
detained without any entitlement to release except (a) as
part of an arrangement to leave Australia or (b)
pursuant to a visa granted by the Minister of
Immigration. The High Court of Australia has held
that such detention is lawful even if removal is
not reasonably practicable in the foreseeable
future.13
[10] I am satisfied that Mr Radhi will not be returned
to Iraq in breach of the Commonwealth’s non-
9
Section 15(1)(b). He will be an excluded person for 10
years if sentenced to 12 months’ imprisonment or more.
He will be an excluded person without limitation of time
should he be sentenced to five years’ imprisonment or
more. As noted, Mr Daoed was sentenced to nine years’
imprisonment.
10
Section 187(2)(a) and 187(8)(a).
11
See s 38 and Division 4 of pt 2 of the Migration Act 1958
(Cth).
12
As an “unlawful non-citizen” because his permission to
be in Australia will have come to an end: see ss 13 and
14 of the Migration Act.
13
Al-Kateb v Godwin (2004) 219 CLR 562.
(2018) 1 LAW M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.]
refoulement obligations. It has not been suggested that
any other country is likely to accept him. This means
that if New Zealand will not allow Mr Radhi back, he
will be subject to mandatory detention which will be
brought to an end only by the grant of a visa.
[11] Mr Radhi could apply for an Australian
protection visa but, assuming he is convicted of
people smuggling, he would have no entitlement
to such a visa and my assessment of the evidence
is that he probably would not be granted one.14
Mr Daoed, who was convicted in Australia in
relation to the SIEV-X, had previously been
extradited from Sweden. After his term of
imprisonment ended, he was refused a protection
visa.
[12] Another possible option for release would be
a residence determination.15 The evidence on
behalf of the Commonwealth, however, suggests
that such a determination is unlikely to be
granted.
[13] The evidence shows that Mr Daoed is now
living in the community pursuant to a removal-
pending bridging visa. We were not told (a) of the
basis upon which the visa was granted; (b) the
conditions, if any, to which he is subject;
(c) whether he has family in Australia; and
(d) how he supports himself. Mr Julian Burnside
AO QC, who provided an affidavit for Mr Radhi,
expressed the view that it is unlikely that he
would obtain such a visa:
Given the content of the allegations against Mr
Radhi and his lack of connection to anyone in
Australia (as I understand it), it is my assessment
that the Minister would not deem it to be in the
public interest to release him from detention.
The Commonwealth challenged the admissibility
of this assertion on the basis that how the
Minister would exercise his or her discretion is
outside Mr Burnside’s expertise. I have
reservations as to whether this is so. But leaving
aside Mr Burnside’s assessment, as I am prepared
to do, I can see no safe basis for assuming that Mr
14
See ss 35A and 36 of the Migration Act.
15
See s 197AB.
43
F-95
Radhi would receive a removal-pending bridging visa.
The decision of the Minister to grant or withhold
such a visa is non-delegable.16 On the evidence of
Mr Burnside a refusal of such a visa would be unlikely
to be reviewed by the courts.
[14] More generally, the evidence showed that the
process of seeking visas is likely to take a number of
years. And during this time, Mr Radhi would remain in
detention.17 The circumstances which would
obtain if he were released and the financial
practicalities of his wife and children joining him
in Australia are uncertain. In the balance of these
reasons I will refer to Mr Radhi’s position in
Australia if not able to return to New Zealand as
involving immigration limbo.
LEGISLATIVE CONTEXT
[15] Most extradition requests are processed
under pt 3 of the Extradition Act 1999. Under this
part, the final decision on extradition is made by
the Minister of Justice under s 30. And under s
30(3):
The Minister may determine that the person is
not to be surrendered if –
…
(d) … it appears to the Minister that compelling
or extraordinary circumstances of the person
including, without limitation, those relating
to the age or health of the person, exist that
would make it unjust or oppressive to
surrender the person; or
(e) for any other reason the Minister considers
that the person should not be surrendered.
As well, s 32(3), (4) and (5) provide:
(3) Subsection (4) applies if –
(a) the Minister has determined under section
30 that in all other respects the person is
to be surrendered; but
(b) in the Minister’s opinion, compelling or
extraordinary circumstances of the person
including, without limitation, those
relating to the age or health of the person,
exist that would make it unjust or
16
Section 195A(5).
17
See s 189.
Law Animated World, 28 February 2018
F-96 M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.] (2018) 1 LAW
oppressive to surrender the person before
the expiration of a particular period.
(4) If this subsection applies, the Minister may
make an order for the surrender of the person
that is to come into effect after the expiration
of a period specified in the order.
(5) The Minister may, at any time after making
an order under subsection (4), vary any
period specified in the order, or may cancel
the order.
[16] Pausing at this point, it will be noted that:
(a) The Minister has two relevant powers, the first
being to refuse surrender (under s 30(3)(d))18
and the second to defer surrender (under s 32(3)
and (4)).
(b) The criteria by which the Minister is
required to act are expressed in similar terms,
the only difference being that the criteria
relevant to the power to defer surrender have seven
added words: “before the expiration of a particular
period”.
[17] To facilitate the discussion which follows
I will refer to the s 30(3)(d) power as the “refusal
power” and the formulation of the criteria by which it
is to be exercised as “short form”. I will, in
contradistinction, refer to the s 32(3) and (4) power
as the “deferral power” and the formulation of the
criteria by which it is to be exercised as “long form”.
[18] Extradition between Australia and New
Zealand is governed by pt 4 of the Act under
which the Minister usually has no role. Instead,
the surrender decision is made by the District
Court. The statutory procedure leading to the
making of such an order is as follows:
(a) Section 41 provides that a warrant issuing out
of Australia can be endorsed by a District
Court Judge in New Zealand. Once endorsed
the warrant authorises the New Zealand
police to arrest those sought to be extradited
and to bring them to court to determine
whether they are eligible for surrender under
s 45 of the Act.
18
The Minister can also refuse on other grounds set out in s
30 of the Extradition Act including the s 30(3)(e) power
to do so “for any other reason”.
Law Animated World, 28 February 2018
44
(b) If the eligibility criteria for surrender under s
45(2) of the Act are met and there are no
mandatory or discretionary restrictions on
surrender, then the court must immediately
make a surrender order.19
[19] It is now established that there are no
mandatory or discretionary restrictions preventing
surrender and that Mr Radhi is in all other respects
eligible for surrender under s 45. So, in the ordinary
course of events, extradition should follow
automatically and as a matter of course. This,
however, is subject to s 48 which is relevantly in
these terms:
48 Referral of case to Minister in certain
circumstances
…
(4) If –
(a) it appears to the court in any proceedings
under section 45 that –
…
(ii) because of compelling or extraordinary
circumstances of the person, including,
without limitation, those relating to the
age or health of the person, it would be
unjust or oppressive to surrender the
person before the expiration of a
particular period; but
(b) in every other respect the court is satisfied
that the grounds for making a surrender
order exist, –
the court may refer the case to the Minister in
accordance with subsection (5).
…
I will refer to test in s 48(4)(a)(ii) as the “referral
criteria”. As will be noted, it is expressed in long
form.
[20] The power of the court under s 48 being to
refer only, it is left to the Minister to determine if
a person is to be surrendered if the case is
referred:
49 Minister must determine if person to be
surrendered if case referred
(1) If a case is referred to the Minister under …
section 48(4) … , the Minister must
19
Section 47.
(2018) 1 LAW M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.]
determine in accordance with the grounds set
out in subsections (2) to (4) of section 30
whether the person is to be surrendered, as if
the case had been referred to the Minister
under section 26.
(2) For the purposes of determining under this
section whether the person is to be
surrendered, the Minister may seek any
undertakings from the extradition country
that the Minister thinks fit.
[21] Section 51(3), (4) and (5) provide:
(3) Subsection (4) applies if –
(a) the Minister has determined under section
49 that in all other respects the person is
to be surrendered; but
(b) in the Minister’s opinion, compelling or
extraordinary circumstances of the
person including, without limitation,
those relating to the age or health of the
person, exist that would make it unjust or
oppressive to surrender the person before
the expiration of a particular period.
(4) If this subsection applies, the Minister may
make an order for the surrender of the person
that is to come into effect after the expiration
of a period specified in the order.
(5) The Minister may, at any time after making
an order under subsection (4), vary the period
specified in the order, or may cancel the
order.
[22] If a referral is made, the Minister has exactly
the same functions as those which apply
automatically in pt 3 extraditions. The Minister
thus has a refusal power (s 49(1)) to be exercised on
the basis of the short form criteria (as s 30(2)–(4)
are incorporated in the process).20 And the Minister
also has a deferral power (under s 51(3), (4) and (5))
to be exercised on the basis of the long form
criteria which are repeated in s 51(3)(b).
[23] Given that the Minister on referral has both
refusal and deferral powers, it would have been
logical for the referral criteria to be expressed in
terms which encompassed both powers and the
criteria by which they are to be exercised.
20
The Minister would also have the s 30(3)(e) power to
refuse extradition “for any other reason”.
45
F-97
[24] In Mailley v District Court at North Shore
the Court of Appeal held that s 48(4) should not
be construed as limiting the grounds upon which
referral might be made to those which have a
temporal limit. Rather the Court construed it as
indicating “that surrender might be permitted at a
later point in time should the compelling or
extraordinary circumstances be no longer
operative”.21
[25] Before us, counsel on both sides argued that
the drafting of s 48(4)(a)(ii) was a mistake which
is so obvious as to be within the power of the
court to correct as a matter of interpretation. So
both counsel contended that we should construe s
48(4)(a)(ii) as though an “or” was inserted before
“before the expiration of a particular period”.22
Another alternative would be to construe s 48(4)(a)(ii)
as if those words were not there; this on the basis that
the short form expression of the criteria would
encompass referral where the circumstances
warranted either refusal or deferral of surrender.
[26] There being no logical explanation for the
asymmetry between s 48(4)(a)(ii) if construed
literally and the Minister’s powers under s 49,
I see considerable force in the approaches just
identified. As well, on the view taken by Ellen
France and McGrath JJ, referral would not be
possible where there are grave but intractable
humanitarian considerations affecting surrender but is
possible where such considerations are less serious.
However, for reasons which I will now explain,
I do not see the outcome of the appeal as
dependent on acceptance of one or other of the
interpretative approaches proposed in [25]. That
being so, I propose (a) to leave this issue to one
side, albeit as warranting legislative review and
(b) to determine the appeal on the assumption that
s 48(4)(a)(ii) is to be construed as meaning what
it says.
21
Mailley v District Court at North Shore [2013] NZCA
266 at [64].
22
The same result could be arrived at by construing s 48(4)
(a)(ii) as if it concluded with the words “or at all”;
compare the reasons of Ellen France and McGrath JJ
below at [90].
Law Animated World, 28 February 2018
F-98 M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.] (2018) 1 LAW
[27] Section 48(4)(a)(ii) must be read in
conjunction with ss 49 and 51(3), (4) and (5).
These sections contemplate a situation in which
the Minister might defer surrender on the basis of
objections which may or may not be able to be
resolved within a particular time period. Where,
at the end of that period, resolution has not
occurred but remains possible, the Minister may
extend the period. If it becomes apparent that the
objection will not be removed, the Minister may
then cancel the surrender order. On this basis, it
seems to me that s 48(4)(a)(ii), even if construed
literally, will warrant the reference of a case to
the Minister where the circumstances warrant the
exercise of the powers conferred by s 51(3), (4)
and (5) and thus where the objection to
extradition is one which, over time, may be able
to be resolved. As will be apparent, I regard the
objection advanced on behalf of Mr Radhi as
within the contemplation of s 48(4)(a)(ii).
PROCEDURAL HISTORY OF THE CASE
[28] There are two aspects of the history of the
case to which I should refer.
[29] Sections 46 and 47 relevantly provide:
46 Procedure following court’s determination of
whether person eligible for surrender
(1) If the court is satisfied that the person is
eligible for surrender, the court must –
(a) issue a warrant for the detention of the
person in a prison or other place
authorised in accordance with section 52
of this Act or section 169 of the Criminal
Procedure Act 2011 pending the
surrender of the person to the extradition
country or the person’s discharge
according to law; …
… Mansfield (who was not counsel for Mr Radhi in
47 Court must make surrender order immediately
if case not referred to Minister
(1) If the court does not refer the person’s case
to the Minister under section 48(1) or section
48(4), the court must, immediately after
issuing the warrant for the detention of the
person under section 46(1)(a), make a
surrender order in respect of the person.
Law Animated World, 28 February 2018
46
(2) A surrender order made under subsection (1)
does not take effect –
(a) until the expiration of 15 days after the date
of the issue of the warrant of detention; or
(b) if an appeal, or an application for review or
habeas corpus, in respect of a determination
under this Act, or any appeal from such an
appeal or application, is pending, until after
the date that the proceedings are finally
determined and the result is that the person is
eligible to be surrendered, –
whichever is the later.
…
[30] The Act provides for a right of appeal against
eligibility for surrender decisions but not in respect of
surrender orders and s 48(4) referrals. Given the
scheme of ss 45, 46 and 47, and particularly s
47(2), we consider that the Judge dealing with a
pt 4 extradition request should address surrender
(and thus s 48(4)) immediately after determining
eligibility for surrender. This, however, was not
the process which was followed in this case.
[31] The warrant for Mr Radhi’s arrest was issued
in Brisbane in February 2011. It was endorsed in
New Zealand on 20 July 2011 and executed on 28
July 2011. Mr Radhi was found to be eligible for
surrender on 19 March 2012 and his subsequent
challenges to this decision were dismissed.23 It
was only at this point, in April 2015, that Mr
Radhi applied to the District Court for referral to
the Minister under, inter alia, s 48(4)(a)(ii). The
splitting of the eligibility for surrender and the s 48(4)
referral issues has resulted in two separate and
consecutive streams of litigation and unnecessary but
substantial delay in the process. All issues should
have been dealt with together in the District
Court, a view which was not disputed by Mr
the District Court).
[32] A second procedural problem with the case
is that the immigration limbo basis on which the
present appeal was argued was not squarely identified
until comparatively late in the piece. Although some
evidence in the District Court was addressed to
23
See above at n 2.
(2018) 1 LAW M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.]
Mr Radhi’s likely post-extradition immigration
status vis-à-vis New Zealand and Australia there
was no real focus on the likelihood of him
continuing to be detained at the expiry of any
sentence of imprisonment and no real analysis of
the possibility of him winding up in immigration
limbo if he cannot return to New Zealand.
[33] Given that the detention and immigration
limbo points were not raised before Judge Moses
in the District Court, it might be thought difficult
to contend that his failure to take them into
account was a reviewable error. The
Commonwealth, however, has made it clear that
it does not wish to make anything of this
difficulty and accordingly I propose to address
the issues on their merits.
[34] Because detention and immigration limbo
arguments were not squarely relied on before
either Judge Moses in the District Court or
Woolford J in the High Court, there is no point in
reviewing the approaches which those Judges
took to the case.
THE JUDGMENT OF THE COURT OF APPEAL
[35] The Court of Appeal approached the case on the
basis that if Mr Radhi is acquitted, he will, in all
probability, be able to return to New Zealand.24 More
relevantly, however, the Court also addressed
what would happen if he is found guilty:25
If he is convicted, sentenced and imprisoned in
Australia for more than two years, he will have
the option of applying to Immigration New
Zealand to return to New Zealand. His criminal
conviction would be taken into account, along
with the facts that Mr Radhi held refugee status
and his immediate family are New Zealand
citizens.
Thus, in terms of Mr Radhi’s children seeing less
of their father, the position for the first two years
would be no different from that of any family
separation where a parent of New Zealand
children will have to stand trial in Australia. If he
is convicted and has to remain in Australia for
more than two years, Mr Radhi’s ability to return
24
Radhi (CA), above n 5, at [46](d).
25
At [46]–[48].
47
F-99
to New Zealand will be less certain, but it is not
impossible. There is nothing unjust in that, given
the conviction.
We agree with Woolford J that the family
circumstances of Mr Radhi do not make it unjust or
oppressive for him to be surrendered. His refugee status
is an extraordinary circumstance, and the fact that he
might not be able to return to New Zealand after serving
his sentence might be seen as part of that extraordinary
circumstance. However, the second requirement
before a referral can be made, of it being unjust
and oppressive to surrender the person, is not
made out. There are steps that Mr Radhi can take
to protect his visa status and reduce the risk of
him not being able to re-enter New Zealand.
Even if convicted and imprisoned in Australia,
Mr Radhi will be able to apply for re-entry,
which will be at the discretion of Immigration
New Zealand. When weighed against the
importance of New Zealand’s extradition
obligations, these circumstances are not sufficient
to render it unjust or oppressive to surrender Mr Radhi.
[36] The Court also addressed the possibility of a
referral to the Minister for the purpose of
resolving in advance Mr Radhi’s immigration
difficulties:26
[Counsel for Mr Radhi] submitted that referral to
the Minister is appropriate in this case because
the Minister has the ability to take steps to
protect Mr Radhi’s visa status, such as seeking
undertakings from Immigration New Zealand …
. However, the fact that referral to the Minister may
be advantageous to Mr Radhi is not part of the statutory
criteria. Section 48(4)(a)(ii) is clear that referral is
only appropriate where there are compelling or
extraordinary circumstances making it unjust or
oppressive to surrender the person. The court has a
gatekeeper or screening role. Cases that do not meet
those criteria should not be referred. As we have
discussed above, we do not consider that the
requirement of it being unjust or oppressive to
surrender Mr Radhi is met.
MY APPROACH
No consideration was given to Mr Radhi’s position should
he be unable to obtain a visa to return to New Zealand
[37] Nowhere in the Court of Appeal judgment is
there any explicit reference to the difficulties
26
At [49] (footnote omitted).
Law Animated World, 28 February 2018
F-100 M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.] (2018) 1 LAW
which Mr Radhi will face if he cannot obtain a
visa to return to New Zealand. As I have noted,
once he is finished with the Australian criminal
justice system, he will be detained. In the absence
of change to the relevant Australian legislation,
he will have no right of access to the Australian
courts to challenge such detention directly.
Assuming he is convicted it is most unlikely that
he will be able to obtain a protection visa. While
it is at least possible that he might eventually be
released into the community, this is likely to take
a number of years. Assuming he is eventually
released, the practicalities of Mrs Radhi and the
children joining him in Australia are uncertain.
[38] Removal from home and separation from
family are part and parcel of the extradition
process. So too is the risk of being subject to
imprisonment following trial. But in almost all
instances of extradition, the extradited person will be
free to pick up his or her life either at the end of the
trial (if acquitted) or, at worst, at the conclusion of any
sentence imposed following conviction. It is not
customary for such persons, once free of the criminal
justice system, to be subject to the risks of (a) indefinite
unreviewable administrative detention and (b) indefinite
separation from their families. Immigration limbo in this
sense is not an ordinary facet of extradition.
Section 22 of the New Zealand Bill of Rights Act 1990
and art 9.1 of the International Covenant on Civil and
Political Rights
[39] Section 22 of the New Zealand Bill of Rights
Act 1990 provides:
22 Liberty of the person
Everyone has the right not to be arbitrarily
arrested or detained.
To the same effect is art 9.1 of the International
Covenant on Civil and Political Rights (ICCPR):27
Everyone has the right to liberty and security of
person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of
his liberty except on such grounds and in
accordance with such procedure as established
by law.
27
International Covenant on Civil and Political Rights 999
UNTS 171 (opened for signature 16 December 1966, entered
into force 23 March 1976).
Law Animated World, 28 February 2018
48
[40] Zaoui v Attorney-General (No 2) concerned
deportation on security grounds under the
Immigration Act 1987.28 Section 72 of that Act
provided:
72 Persons threatening national security
Where the Minister certifies that the continued
presence in New Zealand of any person named in
the certificate constitutes a threat to national
security, the Governor-General may, by Order in
Council, order the deportation from New
Zealand of that person.
Amongst the issues in the case was the
significance of the right not to be deprived of life
under s 8 and the right not to be subjected to
torture under s 9 of the New Zealand Bill of
Rights Act and how these rights constrained the
decision-making powers of the Minister and
Governor-General in Council. As to this, the
Court observed:29
Those provisions do not expressly apply to actions
taken outside New Zealand by other governments
in breach of the rights stated in the Bill of Rights.
That is also the case with arts 6.1 and 7 of the
ICCPR. But those and comparable provisions have
long been understood as applying to actions of a
state party – here New Zealand – if that state
proposes to take action, say by way of deportation
or extradition, where substantial grounds have been
shown for believing that the person as a
consequence faces a real risk of being subjected to
torture or the arbitrary taking of life. The focus is
not on the responsibility of the state to which the
person may be sent. Rather, it is on the obligation
of the state considering whether to remove the
person to respect the substantive rights in issue.
And of the application of ss 8 and 9 to s 72 of the
Immigration Act 1987, the Court went on:30
As directed by s 6 of the Bill of Rights, s 72 is to be
given a meaning, if it can be, consistent with the
rights and freedoms contained in it, including the
right not to be arbitrarily deprived of life and not to
be subjected to torture. Those rights in turn are to
be interpreted and the powers conferred by s 72 are
28
Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006]
1 NZLR 289.
29
At [79] (footnote omitted).
30
At [90], [91] and [93] (footnote omitted).
(2018) 1 LAW M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.]
to be exercised, if the wording will permit, so as to
be in accordance with international law, both
customary and treaty-based. In this case those
presumptions about interpretation and the exercise
of statutory powers are supported by para (b) of the
long title to the Bill of Rights which says that it is
an Act to affirm New Zealand’s commitment to the
ICCPR; further, the wording of the relevant
sections of the Bill of Rights closely tracks the
matching provisions of the Covenant. As already
recalled, the relevant provisions of the Covenant
have been interpreted to apply to the situation
where the state party in question takes action by
way of removal of a person to another country if
that action means that that person faces a real risk
of torture or arbitrary deprivation of life. …
Section 72 confers powers on the Minister and the
Governor-General in Council. The Minister has the
power to certify that the continued presence of any
person in New Zealand constitutes a threat to
national security. There is nothing in the statement
of the broad powers conferred on the Minister and
in particular the Governor-General in Council to
prevent the Minister or Cabinet having regard to
the mitigating factors which the Minister or
Cabinet might consider indicate that the person
should not be deported. The power conferred by s
72 is to be interpreted and exercised consistently
with the provisions of ss 8 and 9 of the Bill of
Rights and with the closely related international
obligations in the Covenant and the Convention
against Torture. Because the power can be so
interpreted and applied, those provisions, as a
matter of law, prevent removal if their terms are
satisfied even if the threat to national security is
made out ….
… 31
It is accordingly our view that the Minister, in
deciding whether to certify under s 72 of the
Immigration Act 1987 that the continued
presence of a person constitutes a threat to
national security, and members of the Executive
Council, in deciding whether to advise the
Governor-General to order deportation under s
72, are not to so decide or advise if they are
satisfied that there are substantial grounds for
believing that, as a result of the deportation, the
person would be in danger of being arbitrarily
deprived of life or of being subjected to torture
or to cruel, inhuman or degrading treatment or
punishment.
49
F-101
To the same general effect is a substantial body of
jurisprudence31 in relation to the European
Convention on Human Rights.32 Significantly,
this approach has been applied where extradition would
carry the risk of arbitrary detention, a point which is
illustrated by Sullivan v The United States of
America,33 to which I now turn.
[41] The offending for which extradition was
sought in Sullivan was of a sexual nature and was
alleged to have occurred in Minnesota. If
extradited and convicted, the alleged offender
would have been subject to the prospect of civil
commitment involving indefinite detention. Of
the 600 persons who had been made the subject
of orders in Minnesota since 1988, not one had
been released by 2012. Detention on this basis
would not be in accordance with art 5.1 of the
European Convention on Human Rights which
corresponds loosely to s 22 of the New Zealand
Bill of Rights Act.34
[42] Extradition was nonetheless sought on the
basis that there could be no certainty that civil
commitment would be sought. At the hearing of the
request for extradition, the position of the United
States (based on a letter from a prosecutor from
Minnesota) was that the alleged offender did not
meet the criteria for civil commitment.35 But, by the
time the appeal was heard, the position of the
prosecutor was that it was too early to say whether
civil commitment proceedings would be
commenced.36 There was other evidence introduced
Beginning with Soering v United Kingdom (1989) 11
EHRR 439 (ECtHR). Applied, for example, in Sullivan v
Government of the United States of America [2012]
EWHC 1680, [2012] 1 Ex LR 435; and R (Ullah) v
Special Adjudicator [2002] EWCA Civ 1856, [2003] 1
WLR 770; aff’d [2004] UKHL 26, [2004] 2 AC 323. For
an overview of the authorities, see Government of
Rwanda v Nteziryayo [2017] EWHC 1912 at [61]–[90].
32
Convention for the Protection of Human Rights and
Fundamental Freedoms ETS No 5 (opened for signature
4 November 1950, entered into force 3 September 1953).
33
Sullivan, above n 31.
34
At [33].
35
See at [22]–[23].
36
See at [20].
Law Animated World, 28 February 2018
F-102 M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.] (2018) 1 LAW
on appeal suggesting that if civil commitment was
sought, an order would probably be made.37 The
statistics made available to the Court suggested that
civilcommitment wasconsideredinrespect of only 13
percentofsexual offenders released from prison.38
[43] On the basis of this evidence Moses LJ and
Eady J had no difficulty in concluding that the
alleged offender faced a “real risk” of civil
commitment39 which the Court regarded as a
“flagrant denial” of his right not to be arbitrarily
detained. As Eady J noted, that assessment of risk
was “borne out by the absence of any undertaking
up to this point”.40 The determination of the appeal
was held over to give the United States an
opportunity to proffer an undertaking that civil
commitment would not be sought.
[44] The concept of “flagrant denial” of Convention
rights which was applied in Sullivan comes from the
jurisprudence on the European Convention.41 It
encompasses what might be regarded as questions
of degree which, for instance, arise where
extradition is opposed on the basis that the alleged
offender will not receive a fair trial. In Sullivan the
Court concluded that civil commitment would be a
flagrant denial of the right to be free of arbitrary
detention but in that case the word “flagrant” had
little or no work to do as the conclusion that the
denial was flagrant was treated as the corollary of
the conclusion that civil commitment was in breach
of art 5 of the Convention.
[45] The word “flagrant” usually denotes conduct which
is high-handed, brazen or scandalous and, for this
reason, I have reservations about its use in this
context.42 What is important is that extradition not be
refused for trivial reasons.
[46] Administrative detention of Mr Radhi
following the expiry of any sentence of
imprisonment would be open-ended in terms of
duration. There would be no right of access to the
37
See at [19].
38
See at [21].
39
At [28] per Moses LJ and at [37] per Eady J.
40
At [37].
41
See above at n 31.
42
Compare the discussion in Kim v Minister of Justice
[2016] NZHC 1490, [2016] 3 NZLR 425 at [105]-[112].
Law Animated World, 28 February 2018
50
Australian courts to challenge it other than on
formal grounds of illegality. This detention would,
in all probability, last for a number of years. The
United Nations Human Rights Committee has, on a
number of occasions, held that the immigration detention
to which the various authors had been subjected was in
breach of art 9.1 of the ICCPR.43 On the basis of the
Human Rights Committee’s decisions and Sullivan,
it is arguable that sending Mr Radhi to Australia would be
in breach of his s 22 right not to be arbitrarily detained.
[47] Section 5 of the New Zealand Bill of Rights
Act provides:
5 Justified limitations
Subject to section 4, the rights and freedoms
contained in this Bill of Rights may be subject
only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and
democratic society.
Where extradition or deportation is likely to result
in extra-legal, but officially inflicted, arbitrary loss
of life or torture (which was the argument in Zaoui)
s 5 does not have a role to play, whether direct or
by analogy. Arguably the same is true of arbitrary
detention, even if it is lawful under the laws of the
jurisdiction seeking extradition. Thus in Sullivan
the Court did not engage with the merits of the
policy considerations which underpinned the civil
commitment regime created by the laws of the State
of Minnesota. All that mattered was that such a
regime would not be countenanced under art 5 of
43
United Nations Human Rights Committee Views:
Communication No 560/1993 59th sess UN Doc CCPR/
C/59/D/560/1993 (3 April 1997) (A v Australia); United
Nations Human Rights Committee Views: Communication
No 900/1999 76th sess UN Doc CCPR/C/76/D/900/1999
(28 October 2002) (C v Australia); United Nations
Human Rights Committee Views: Communication No
1014/2001 78th sess UN Doc CCPR/C/78/D/1014/2001
(6 August 2003) (Baban v Australia); United Nations
Human Rights Committee Views: Communication No
2136/2012 108th sess UN Doc CCPR/C/108/D/
2136/2012 (25 July 2013) (MMM v Australia); United
Nations Human Rights Committee Views: Communication
No 2094/2011 108th sess UN Doc CCPR/C/108/D/
2094/2011 (26 July 2013) (FKAG v Australia); and
United Nations Human Rights Committee Views:
Communication No 2233/2013 116th sess UN Doc
CCPR/C/116/D/2233/2013 (22 March 2016) (FJ v
Australia).
(2018) 1 LAW M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.]
the European Convention. In this respect, however,
the structure of the European Convention is not identical
to the New Zealand Bill of Rights Act as the Convention
does not contain an equivalent to s 5.
[48] Leave to appeal to this Court was granted in
terms which did not refer to s 22 and, probably for
this reason, Mr Mansfield did not argue that the
extradition of Mr Radhi to Australia would breach
his s 22 rights. So the Commonwealth has not had a
chance to respond to the line of argument just
outlined. This is significant. I recognise that
administrative detention is authorised under the
laws of the Commonwealth and gives effect to what
the Commonwealth regards as cogent policy
considerations. If given the opportunity to do so, the
Commonwealth would almost certainly have argued
that such detention is not arbitrary for the purposes
of s 22 and may have challenged the applicability of
the Sullivan approach to the New Zealand Bill of
Rights Act, perhaps, as I have suggested, on the
basis that there is scope for the application, at least
by analogy, of s 5 and perhaps on other grounds.
[49] In this context, I prefer not to express even a
tentative view as to whether the s 22 argument
would have been successful if advanced. The
reasons why I have discussed it in some detail are
threefold:
(a) The argument which succeeded in Sullivan,
founded on art 5 of the European Convention,
was closely analogous and the decisions of the
Human Rights Committee to which I have
referred were also cited to us. Given that I rely
on Sullivan in a respect which I am about to
discuss, it would be odd not to address whether
the present appeal should be decided on the
basis of reasoning analogous to that of Moses
LJ and Eady J.
(b) I see the s 22 argument as one which, if
advanced, would have warranted serious
consideration. This is material to the
interpretation issue as to s 48(4)(a)(ii) because,
on the approach preferred by Ellen France and
McGrath JJ, the s 22 argument would not be
available for consideration. I see this as another
reason for not adopting their approach.
(c) Given the result of the appeal, the final decision
on extradition will be made by the Minister of
Justice and it seems to me that, in terms of
Zaoui, a decision to extradite Mr Radhi will not
51
F-103
be able to be properly made without the s 22
argument having been first addressed.
Is the susceptibility of Mr Radhi to indefinite administrative
detention a “compelling or extraordinary” circumstance “of the
person” for the purposes of s 48(4)(a)(ii)?
[50] I consider that Mr Radhi’s susceptibility to such
detention is capable of a being a circumstance warranting
referral under s 48(4)(a)(ii). Indeed, I do not see much
scope for argument to the contrary. Whether it does
amount to such a circumstance depends on an
assessment of the likelihood of him in fact being
administratively detained.
[51] Since it is practically inevitable that Mr Radhi
will be administratively detained if not able to
return to New Zealand, the likelihood of him being
detained is largely a function of the likelihood of
him not being able to return to New Zealand.
What is the likelihood of Mr Radhi
not being able to return to New Zealand?
[52] The analysis in the Court of Appeal as to the
likelihood of Mr Radhi having difficulties with a
return to New Zealand was limited. As will be
apparent from my earlier analysis, I am inclined to the
view that Mr Radhi would, if found not guilty, be able
to return to New Zealand, even if the proceedings take
more than two years to determine. On the other hand,
if he is convicted, it might be thought to be
practicably inevitable that he will be sentenced to at
least 12 months in prison which will result in him
becoming an excluded person. And if he becomes an
excluded person, there must be a substantial risk that
he will be unable to return to New Zealand. The
corollary of this is that there is a substantial risk that his
extradition to Australia will result in the immigration
limbo consequences which I have outlined.
[53] It will be recalled that in Zaoui the Court saw
ss 8 and 9 of the New Zealand Bill of Rights as
applying to the actions of New Zealand:44
… where substantial grounds have been shown for
believing that the person as a consequence [of
extradition or deportation] faces a real risk of being
subjected to torture or the arbitrary taking of life.
A similar approach has been taken as to the
compatibility of extradition with the European
Convention on Human Rights. Under this approach
44
Zaoui, above n 28, at [79].
Law Animated World, 28 February 2018
F-104 M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Court Opinion - William Young J.] (2018) 1 LAW
the courts consider whether extradition would give rise to
a real risk of flagrant disregard of Convention rights. This
is illustrated by Sullivan.45
[54] Zaoui and Sullivan were concerned, respectively,
with extra-territorial breaches of the New Zealand Bill
of Rights Act and the European Convention on
Human Rights. I have recorded the possibility that
sending Mr Radhi to Australia would breach his s 22
right not to be arbitrarily detained but, as noted, I am
not deciding the case on that basis. That point
notwithstanding, the real risk approach adopted in
those cases seems to me to be of assistance in
determining whether Mr Radhi’s circumstances
engage s 48(4)(a)(ii).
[55] If extradited, Mr Radhi will, in my opinion, be at real
risk of immigration limbo including administrative
detention and I regard this as a sufficient circumstance
to warrant referral to the Minister.
Can the risks to Mr Radhi be removed?
[56] The risk of arbitrary detention in Australia could be
removed by an undertaking from the Commonwealth but
such an undertaking would not completely resolve the
immigration limbo problem. This latter problem,
however, could be completely resolved, as the
Commonwealth conceded before us, by the New
Zealand Minister of Immigration granting Mr Radhi a visa
in terms which would secure his entitlement to return to
New Zealand at the end of the criminal justice process.
Such a visa would also resolve the risk of arbitrary
detention.
DISPOSITION
[57] For the reasons given, I am satisfied that the case
should be referred to the Minister of Justice; this on the
basis that it appears to me that because of the
compelling or extraordinary circumstances of Mr
Radhi it would be unjust or oppressive to surrender
him to Australia before the Minister has had the
opportunity to consider the immigration limbo issue
discussed in this judgment. Glazebrook and O’Regan
JJ being of the same opinion the appeal is allowed and the
case referred to the Minister accordingly.
[58] As we understand it, Mr Radhi is legally aided.
If an order for costs is sought, application may be
made. For this reason, costs should be reserved.
[59] Section 48(5) of the Extradition Act provides:
45
Sullivan, above n 31.
Law Animated World, 28 February 2018
52
If the court refers the case to the Minister under
subsection (1) or subsection (4), the court must
send to the Minister a copy of the warrant of
detention together with a copy of all other
documents before the court in the case, and such
report on the case as the court thinks fit.
We do not have all the documents which are required
to be sent to the Minister. We would, accordingly,
be grateful if the Crown Law Office would collect and
assemble the documents so that we can comply formally
with the subsection.
*****
GLAZEBROOK AND O’REGAN JJ
(Given by Glazebrook J)
[60] The background, legislative context and
procedural history is set out in the reasons of
William Young J.46
[61] We agree that no explicit consideration was
given by the Court of Appeal to Mr Radhi’s
position if he cannot obtain a visa to return to New
Zealand.47
[62] We agree with William Young J that there is a
substantial risk that, if Mr Radhi is convicted, he will
be unable to return to New Zealand.48 We consider, on
the material before the Court, that if Mr Radhi cannot
return to New Zealand, there is a real risk that he will
be subjected to the mandatory detention and
immigration limbo consequences outlined in William
Young J’s judgment. We also agree that it is possible
for these risks to be removed.49
[63] This means that we agree there are compelling or
extraordinary circumstances warranting a referral to the
Minister.50 We also agree that the appeal should be
allowed.51
[64] As it was not relied on, we make no
comment on s 22 of the New Zealand Bill of
Rights Act 1990.52
*****
46 Above at [1]–[36]. We are in general agreement with those
paragraphs.
47 We thus agree with [37]-[38] of WilliamYoung J’s reasons.
48 See at [52] of his reasons.
49 See at [56] of his reasons.
50
See at [55] of his reasons.
51 At [57] of his reasons. We also agree with [58] and [59].
52 We thus make no comment on [39]–[49] and [53]–[54] of
William Young J’s reasons, apart from to agree with the last
sentence of [54].
(2018) 1 LAW M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Ellen France & McGrath JJ dissenting]
ELLEN FRANCE AND McGRATH JJ
(Given by Ellen France J)
INTRODUCTION
[65] We consider the intended effect of the
statutory scheme was to have a narrower impact
than those reflected in the judgments delivered by
the majority. In our view, s 48(4)(a)(ii) of the
Extradition Act 1999 (the Act) deals with existing immediate
circumstances of the person, such as ill-health, that make an
otherwise correct extradition questionable. The personal
circumstances providing the basis for referral to the Minister
are to be construed in light of the phrase “before the
expiration of a particular period”. On this approach, the
appellant’s circumstances do not come within s 48(4)(a)(ii).
[66] We consider this interpretation is supported
by the text, purpose and scheme of the Act. The
approach is also consistent with the context
including the legislative history. After setting out
some of the background material, we then discuss
the reasons for our approach.
BACKGROUND
[67] As has been foreshadowed, the focus of the appeal is
on the correct approach to s 48 of the Act. It is helpful to
first explain something of the legislative history to the
provision. The first iteration of what later became s
48(4)(a)(ii) originally appeared in the Extradition Bill
1998 as a ground for discretionary restriction on
surrender.1 The relevant clause in the Bill was based on s
19 of the Fugitive Offenders Act 1881 (UK) (the 1881 Act)2
in force in New Zealand for extradition to
Commonwealth countries until the implementation of the
current Act.3
[68] Section 19 of the 1881 Act provided:
19. Refusal to return prisoner where offence too trivial –
Where the return of a prisoner is sought or ordered under
this part of this Act, and it is made to appear to a
magistrate or to a superior court that by reason of the
trivial nature of the case, or by reason of the application
for the return of such prisoner not being made in good
faith in the interests of justice or otherwise, it would,
having regard to the distance, to the facilities of
communication, and to all the circumstances of the case,
be unjust or oppressive, or too severe a punishment, to
return the prisoner either at all or until the expiration of
1Extradition Bill 1998 (146-1), cl 8.
2Fugitive Offenders Act 1881 (UK) 44 & 45 Vict c 69.
3 The international context is discussed in the judgment of
McGrath and Blanchard JJ in Dotcom v United States of
America [2014] NZSC 24, [2014] 1 NZLR 355 at [134]-[142].
53
F-105
a certain period, the court or magistrate may discharge
the prisoner either absolutely or on bail, or order that he
shall not be returned until after the expiration of the
period named in the order, or may make such other order
in the premises as to the magistrate or court seems just.
(emphasis added)
[69] The broad power at that point was exercised by
the court and encompassed both the ability to defer
and to refuse to order surrender.
[70] At select committee stage, the provision now found
in s 48(4)(a)(ii) was removed from the grounds for
discretionary refusal and placed in two different clauses.4
The first of these clauses was cl 30(3)(ca) (now s
30(3)(d) of the Act) which gave the Minister discretion
under pt 3 to determine that the person should not be
surrendered if it would be “unjust or oppressive to
surrender the person” (emphasis added). The second
clause, cl 45(4)(a)(ii) (now s 48(4)(a)(ii)), provided
under pt 4 that the court may refer the case to the
Minister if it would be “unjust or oppressive to
surrender the person before the expiration of a
particular period” (emphasis added).
[71] The record suggests that the decision to relocate
the original provision was made on the advice of the
Ministry of Justice.5 Limiting the deferral power to
age and ill-health or other personal circumstances also
appears to have reflected the Ministry’s advice.6
Finally, the Ministry recommended the Minister, not the
court, should make the decision on this ground and on
whether or not deferral was appropriate.7
[72] Turning to s 48, the first point to note is that the
heading indicates the provision deals with the referral
of a case to the Minister “in certain circumstances”.
[73] It is useful next to explain the circumstances for
which provision is made.
4 Extradition Bill 1998 (146-2).
5 Ministry of Justice Extradition Bill: Report on Amnesty
Submission and Other Matters (27 November 1998) at 7.
6 Ministry of Justice Extradition Bill: Proposals for Amendment
(15 September 1998) at 7, where the advice from the Ministry
was that the broad ground of “incompatible with humanitarian
considerations” which appeared cl 8 in the first reading version
of the Bill should be omitted.
7 Ministry of Justice, above n 57, at 6–7. The Ministry’s
recommendation was that: “The power to refuse extradition on
the basis that it would be unjust or oppressive because of the
person’s age, health or personal circumstances should be a
matter for the Minister to decide, not the court. The Minister
should be able to make a surrender order with a deferred
commencement if the circumstances are likely to be transitory
in nature”: at 7 (emphasis added).
Law Animated World, 28 February 2018
F-106 M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Ellen France & McGrath JJ dissenting] (2018) 1 LAW
[74] Under s 48(1), the court must refer the case to the
Minister in the circumstances set out. The case must be
referred where “the court is satisfied that the grounds for
making a surrender order otherwise exist” but one of the
other listed criteria are met. The criteria include where
the person to be extradited is a New Zealand citizen8 and
where it appears to the court either that there are
“substantial grounds for believing” the person to be
extradited “would be in danger of being subjected” to
torture in the extradition country9 or that “the person has
been sentenced to death or may be sentenced to death by
the appropriate authority in the extradition country”.10
Section 48(3) provides that the court is not required to
refer the case to the Minister because the person is a
New Zealand citizen (as is required under s 48(1)(a)) if
Australia is the extradition country or the extradition
country is a designated country under pt 4 of the Act.
[75] Section 48(4) describes the circumstances in which
the court may refer the case to the Minister. Section 48(4)
reads as follows:
(4) If –
(a) it appears to the court in any proceedings under
section 45 that –
(i) any of the restrictions on the surrender of the
person under section 7 or section 8 apply or may
apply; or
(ii) because of compelling or extraordinary
circumstances of the person, including, without
limitation, those relating to the age or health of
the person, it would be unjust or oppressive to
surrender the person before the expiration of a
particular period; but
(b) in every other respect the court is satisfied that the
grounds for making a surrender order exist, –
the court may refer the case to the Minister in
accordance with subsection (5).
[76] Apart from the present case, there has been limited
consideration in New Zealand of s 48(4)(a)(ii). The Court
of Appeal in Chvastek v Commonwealth of Australia
observed that s 48(4)(a)(ii) “is concerned only with
delaying the surrender for compelling or extraordinary
circumstances”.11
[77] In Mailley v District Court at North Shore the Court
of Appeal said that the phrase “simply” indicated that
surrender might be permitted at some later point “should
the compelling or extraordinary circumstances be no longer
operative”.12 The Court was concerned that restricting its
8 Extradition Act 1999, s 48(1)(a).
9 Section 48(1)(b)(i).
10 Section 48(1)(b)(ii).
11
Chvastek v Commonwealth of Australia CA281/01, 9 May 2002 at [3].
12
Mailley v District Court at North Shore [2013] NZCA 266 at [64].
Law Animated World, 28 February 2018
54
application to conditions having a temporal limit “would
have the absurd result that a person who was terminally ill
could not avail themselves of the provision because their
condition was permanent and had no time limit other than
death”.13 The inclusion of “age” in s 48(4)(a)(ii) was also
seen to support that view.14 As we will explain, we do not
consider Mailley is correct in this respect.
TEXTUAL CONSIDERATIONS
[78] From this brief background, it can be seen that
there are a number of textual considerations which
suggest the circumstances referred to in s 48(4)(a)(ii) are not
intended to be read broadly.
[79] The first two textual matters both indicate that the
provision is only meant to apply to particular, limited, cases
which are an exception from the norm. As we have noted, the
heading to s 48 provides for referral of a case to the
Minister in “certain” circumstances. The circumstances are
those where the specific terms of the section are met.
Further, both of the two situations in s 48 in which referral
is envisaged are framed as a carve out or exception. In the
first situation (under s 48(1)) the court must refer the case
to the Minister and, in the other situation (under s 48(4)),
the court may refer the case to the Minister. In both
situations the obligation, or the ability, to refer the case
arises where the court is satisfied that the grounds for
making a surrender order otherwise exist. This suggests that
it is intended the referral power will apply in a limited way.
[80] The other textual aspect we note is that the phrase in s
48(4)(a)(ii) is a composite phrase. Therefore the plain
reading is that the circumstances of the person must be
compelling or extraordinary and it is “because” of those
circumstances that “it would be unjust or oppressive to
surrender the person before the expiration of a particular
period”. The reference to “before” and to a “particular”
period indicates some immediacy.
THE PURPOSE AND SCHEME OF THE ACT
[81] The first point to note in terms of the purpose and
statutory scheme is that the Act provides for two separate
extradition regimes. The first of these, found in pt 3, is the
standard procedure which applies to extradition from
New Zealand to certain treaty countries and certain
Commonwealth and other countries, not including
Australia. The second regime is that found in pt 4, with
which the present appeal is concerned, and that deals
with extradition from New Zealand to Australia and
designated countries. The key difference between the
two regimes for present purposes is that pt 4 is intended
to provide a more streamlined process for extradition.
13
At [64].
14
At [64].
(2018) 1 LAW M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Ellen France & McGrath JJ dissenting]
[82] Part 4 expressly applies to Australia and any designated
15
country. Designation under pt 4 requires an Order in
Council and there are various requirements to be
satisfied before any other country may be designated.
These are set out in s 40 of the Act.16 Part 4 then provides
for the endorsed warrant procedure , described by one
commentator as a “simplified extradition procedure”
stemming “from its use between colonies dating back to
imperial times”.17
[83] The pt 4 procedure differs from the general extradition
procedure in that a warrant of arrest from the extradition
country may be endorsed in New Zealand to enable the person
to be surrendered . As is discussed further below, the
result is that there is no requirement to establish a
presumption that the person sought for extradition committed
18
an extradition offence and is thus eligible for surrender. The
procedure relies, as the commentator notes, on the notion,
“underpinned by the presumption of legal and procedural
similarity”, of comity between New Zealand and
Australia.19 The Law Commission described the effect
of pt 4 as reflecting “a policy decision … to put Australia
in a sub-category all of its own, in recognition of the
particularly close and trusting relationship New Zealand has
with it”.20
[84] Section 44(1) of the Act provides that when a
person is arrested on a warrant endorsed under s 41 that
person is to be brought before a court as soon as possible
and their eligibility for surrender determined under s 45.
Section 45(5)(b) removes the requirement, applicable to
extraditions under s 24(2)(d) found in pt 3, that the court be
satisfied that the evidence produced at the hearing:21
… would, according to the law of New Zealand, but
subject to this Act,—
(i) in the case of a person accused of an extradition
offence, justify the person’s trial if the conduct
constituting the offence had occurred within the
jurisdiction of New Zealand; or
(ii) in the case of a person alleged to have been convicted
of an extradition offence, prove that the person was
so convicted.
15
Extradition Act 1999, s 39.
16 Essentially, it is necessary that the country complies with the
“speciality” rule (the individual may stand trial on the offences
for which he or she is extradited but not for pre-extradition
offences) and the prohibition on return to a third country.
17
Rynae Butler “Imbalance in extradition: the backing of warrants
procedure with Australia under Part 4 of the Extradition Act
1999” [2017] NZCLR 63 at 63.
18 See discussion of ss 45(5)(b) and 24(2)(d) below at [84].
19 Butler, above n 69, at 64–65.
20 Law Commission Modernising New Zealand’s Extradition and
Mutual Assistance Laws (NZLC R137, 2016) at [7.18].
21 Extradition Act, s 24(2)(d).
55
F-107
If the case is not referred to the Minister by the court
under s 48(1) or (4) then the court is to make a
surrender order immediately after issuing a warrant.22
[85] It is in this context that s 48(4) provides for,
exceptionally, referral by the court to the Minister in
certain circumstances.
[86] Secondly, other parts of the Act recognise that age
or ill-health may provide a basis for the Minister to defer
surrender but not, specifically, for refusal. Section 51(3), for
example, provides for deferral if:
(a) the Minister has determined under section 49 that in
all other respects the person is to be surrendered; but
(b) in the Minister’s opinion, compelling or
extraordinary circumstances of the person including,
without limitation, those relating to the age or health
of the person, exist that would make it unjust or
oppressive to surrender the person before the
expiration of a particular period.
Section 51(4) provides that if s 51(3) applies “the Minister
may make an order for the surrender of the person that is to
come into effect after the expiration of a particular period”.
[87] Section 32(3) and (4) in pt 3 are to the same effect.
While both s 32 and s 51 include other, broader, powers for
refusal the point is that these subsections (s 32(3) and s
51(3)) suggest an order deferring extradition is not inapt in
the situations of age or ill-health.
[88] On our approach, which focuses on the immediacy of
the situation, the case of the terminally ill person is
accommodated.23 Where, for example, there was a prognosis
the person was likely to die in two months, it would be
open to the court to conclude that surrender was unjust or
oppressive. In addition, the phrase “unjust or oppressive”
also has to accommodate trial-related issues which meet the
high threshold of “compelling or extraordinary
circumstances of the person”.24 In those circumstances
22 Section 47(1). See also s 47(2)(b) dealing with time to make an
application for habeas corpus. We agree with William Young J
that the scheme of the Act envisages that a Judge dealing with
a pt 4 extradition request should address surrender, and so s
48(4), immediately after determining eligibility for surrender:
above at [30].
23 Contrary to the view expressed by William Young J above at [26].
24 The Court of Appeal in Commonwealth of Australia v Mercer
[2016] NZCA 503 at [33] (leave to appeal was refused by this
Court: Mercer v Commonwealth of Australia [2017] NZSC 33)
cited this passage form the judgment of Lord Diplock in Kakis
v Governor of the Republic of Cyprus [1978] 1 WLR 779 (HL)
at 782–783: ‘“Unjust’ I regard as directed primarily to the risk
of prejudice to the accused in the conduct of the trial itself,
‘oppressive’ as directed to hardship to the accused resulting
from changes in his circumstances that have occurred during
the period to be taken into consideration; but there is room for
overlapping, and between them they would cover all cases
where to return him would not be fair”.
Law Animated World, 28 February 2018
F-108 M.K. Radhi v. District Court Manukau & Anr. [NZ-SC: Ellen France & McGrath JJ dissenting] (2018) 1 LAW
extradition of a very elderly person to face trial, for example,
potentially could meet the threshold albeit the individual is
obviously not going to get any younger. It follows that the
considerations that influenced the Court of Appeal in
Mailley are not decisive.
[89] Finally, it is apparent from the statutory scheme that a
policy choice has been made to differentiate between those
powers exercisable by the Minister and powers exercisable by
the court. For example, under s 30 if the court issues a
warrant for detention the Minister must then decide whether
the person is to be surrendered. One of the grounds on
which the Minister may refuse surrender under s 30(3)(d)
mirrors the circumstances of the person as set out in s
48(4)(a)(ii). The legislative history we have discussed also
supports the view there was a deliberate decision to give the
Minister a broader power and so more flexibility. The fact
that the power to refer a case vested in the court is narrower
is simply a reflection of the choice made about who is to
exercise various powers and in what circumstances.
[90] We add that neither the history nor the statutory
scheme support the submission the difference between s
30(3)(d) and s 48(4)(a)(ii) is a mistake.25 Against this scheme,
the omission of the words “or at all” from s 48(4)(a)(ii), in
contrast to their inclusion in s 30(3)(d), was deliberate.
[91] In conclusion, Rynae Butler makes the point that
“[e]xtradition is meant to be expeditious and efficient. At
the same time, the process must provide adequate
protection to the rights of the person” sought to be
extradited.26 The points we have highlighted suggest pt 4 is
intended to tilt the balance towards efficiency in extradition
recognising the particular interests in comity with Australia
and any other designated country whose system meets the
requirements for designation under pt 4. In addition, it
appears that the choice of decision maker, the Minister or
the court, in particular situations reflects policy
considerations about the decision-making processes. This
means that there is not necessarily any asymmetry between
the court’s power of referral and the powers of the Minister
but, to the extent that there is, that is deliberate.27
APPLICATION TO THE APPELLANT’S CASE
[92] We do not consider the appellant’s circumstances
comprise a condition of the sort envisaged in s 48(4)(a)(ii). The
only temporal aspect is the fact the Minister could bring an
end to the circumstances by, for example, giving the
appellant New Zealand citizenship or by undertaking to
grant him a visa if he has been out of New Zealand for
more than two years.
[93] The way in which the case has developed and, in
particular, the belated focus on the possibility of detention in
25 William Young J above at [25]–[26].
26
Butler, above n 69, at 97.
27 William Young J above at [26].
Law Animated World, 28 February 2018
56
Australia after any conviction means there has been limited
evidence about what might happen if the appellant was
convicted and sentenced to a term of imprisonment,
making return to New Zealand within two years
impossible. Nor has the potentially more significant
evidence on this topic been tested.
[94] On what we do know, we also take a different
view from that of the majority as to the effect of that
factual material. For example, very little is known of
Mr Khaleed Daoed’s situation but, although
convicted, he is now not detained. It is not at all clear
that the appellant would not be treated in the same
way.28
[95] Further, any current prognosis is necessarily
speculative because it requires an attempt to foresee
what might happen in anything from over two to 10 or
more years. That speculation reflects various factors
such as uncertainty as to the outcome of a trial and as
to the impact of the passage of time. For example, the
relevant legislative regimes in either New Zealand or
Australia may alter, as might relevant government
policies in either country. The speculative aspect is
such that the circumstances cannot be said to meet the
statutory criteria.
[96] We add that in these circumstances we do not
consider it is appropriate to venture any suggestions as
to the possibility of a breach of s 22 of the New
Zealand Bill of Rights Act 1990.29 The issue of
whether Zaoui v Attorney-General (No 2) applies to
arbitrary detention, for example, is an issue of broader
significance beyond the present case and it is not
necessary to decide the question in order to resolve
this case.30 The submission was not one advanced by
the appellant and we heard no argument on it.
[97] We would accordingly dismiss the appeal.
Solicitors: Crown Law Office, Wellington for First and
Second Respondents
*****
28 See William Young J above at [1], [11] and [13] for a
description of Mr Daoed’s circumstances. The assessment of
Mr Julian Burnside AO QC, who provided evidence by way of
affidavit for Mr Radhi, that the same would not necessarily
occur to the appellant is based on his view of the political
climate.
29 The extent to which the argument about s 22 of the New
Zealand Bill of Rights Act 1990 may be relevant on our
approach to s 48(4)(a)(ii) is not something we have considered
because it does not arise on the present facts.
30 Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1
NZLR 289.
 OVERCOMING THE SHADOW ECONOMY
INTERNATIONAL POLICY ANALYSIS
JOSEPH E. STIGLITZ AND MARK PIETH
Overcoming the Shadow Economy
November 2016
IV
RECOMMENDATIONS
As the previous Section has illustrated, global
tolerance for secrecy is rapidly diminishing. The
international community has been engaged in an
extensive cost-benefit discussion, and whatever
the benefits, they are over-shadowed by the costs.
In the early days of the fight against secrecy,
attention was focused on banks and the financial
sector more broadly. But the Panama Papers
illustrated that if we are to address the problems posed
by secrecy-havens, we have to do something about the
underlying institutional arrangements that facilitate a
lack of transparency, as well as the complex web of
corporate structures and those that help create and
maintain them. Governments are being held accountable
to adopt and enforce regulations that prevent opacity; and
countries whose governments fail to do so should and will
face serious consequences.
If the country itself will not enforce
transparency regulations, then the international
community should step in to fill the void. And it
should do so in a way that encourages other
secrecy-havens to undertake tough enforcement.
Doing something about any particular site will
have limited benefits, unless action is taken
against all of the sites.
This world has changed in the last quarter century.
Not only has globalization proceeded apace, so has the
darker side of globalization – facilitated by secrecy-
havens. And as this has occurred, the global
community has rightly recognized this as a disease
that has to be attacked globally. Politicians in
secrecy-havens may have insufficient incentives
for tough enforcement, as those within their
countries who benefit from secrecy often have
♣
Courtesy: Anna Bruce-Lockhart, Editor, World Economic
Forum, and Joe Stiglitz at https://www.weforum.org/;
Contd. from last issue; emphases in bold ours - IMS.
57
Joseph E. Stiglitz & Mark Pieth♣
undue political influence. Fortunately, politicians
within much of the rest of the global community
have strong incentives to ensure strict
enforcement as it is they, their citizens, and their
treasuries, which suffer from the illicit activities
that flourish under secrecy.
As economic leaders, the United States and
Europe have an obligation to force financial
centers to comply with global transparency
standards. That they have the instruments to do so
has been forcefully shown in the fight against
terrorism. That they do not do so in the fight
against corruption and tax avoidance and evasion
is testimony to the power of the interests of those
who benefit from secrecy.
While countries like the United Kingdom and the
United States preach about the vices of the offshore
centers, within their own borders there are pockets of
secrecy where these bad practices continue. But with
the overall societal costs so transparently large,
there is a growing demand among the public to
end this state of affairs. Therefore, U.S. and
European regulators should treat secrecy-havens like
the carriers of a dangerous disease. If left unchecked,
it can spread like a virulent virus. We know what
to do with dangerous contagious diseases: quarantine.
And so too for the secrecy-havens: they should be
cut off from the global financial and economic
system and we have the necessary means at hand:
ψ We can declare it illegal for any citizen of the
»cooperative « countries to have an account in a non-
cooperative jurisdiction.
ψ We can declare it illegal for an individual or a
corporation in a cooperative country to be a
shareholder, director, or trustee of any trust,
corporation, or foundation in a non-cooperative
country.
ψ We can declare it illegal for any bank to have any
correspondence relationship or to interact in any
way with any financial institution in a non-
cooperative jurisdiction.
And the punishment for the violation of these laws
should be severe. A bank or other financial
institution violating these principles should lose
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58 Overcoming the Shadow Economy (Joseph Stiglitz & Mark Peith)
its license to operate; a lawyer or other
professional service provider violating these
principles should lose their license to practice; a
publicly created entity failing to report its tax and
beneficial ownership information annually should
be de-listed. The fact is that there is an ample supply
of good actors; the international community does not
need to encourage the bad actors.
Much is at stake: if we cannot show our
citizens that globalization can be tempered, that it
can be tamed for the benefit of the vast majority,
there will be a backlash. And the first order of
business in taming globalization is to make sure that the
secrecy-havens are shut down. If we cannot do that,
how can we expect our citizens to believe that we
are able – or willing – to temper globalization.
Most of the recommendations laid out below
are aimed at the international community. But
there is also one overriding recommendation aimed at
the secrecy-havens: Rules and regulations that might
have been unthinkable twenty-five years ago are now
viewed as just the beginning. It is vital for all
countries, and especially small countries with
significant financial centers, to stay ahead of the
curve by creating a business model for long term
sustainable growth. They cannot continue with a
business model based on taking advantage of
gaps in global legal and regulatory standards.
They cannot continue with a business model
attempting to engage in »transparency arbitrage.«
The consequences of being cut off from the
benefits of globalization, especially in the
financial sector, would be devastating for these
countries.
Countries should position themselves proactively –
not just complying with current minimal standards, but
placing their economic development model at the
cutting edge of the evolution of those standards. Each
country must seriously consider whether it wants
to be engaged in a never-ending struggle to catch
up to the evolving international standards, or
serve as a model, setting standards that others
will eventually be forced to emulate. Better today to
seek an economy suited to the realities of tomorrow.
This section is divided into two parts: the first
lays out a set of broad principles, which are
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described in greater detail in the second. We need
to emphasize, however, that it is not the intention of
this Report to present concrete legislative proposals, but
rather to show the magnitude of the task before the
international community, and to argue that the
international community needs to take a comprehensive
approach, going well beyond those embodied in
standard practices today.
1) PRINCIPLES
1. Secrecy has to be attacked globally – offshore and
onshore. There can be no places to hide.
2. The collection and exchange of information related
to taxation, ownership, and illicit activities is a
shared global responsibility.
3. While the traditional gatekeepers of this
information are financial institutions,
addressing secrecy effectively will mean tackling the
entire industry that facilitates secrecy – including
the legal firms that have played a pivotal role
in the creation of the web of corporations.
4. Knowledge of beneficial ownership of companies and
bank accounts is fundamental, both to ensure
taxation and also to prevent and prosecute
crime.
5. Tax preferences are a privilege and not a right. Tax
free zones provide opportunities for money
laundering, and those operating in such zones
should be held to a high standard.
6. Corporations, trusts, and foundations are creations of
the state – and as such, they have no inalienable
rights. They are created to facilitate societal
welfare, and to ensure that they do so, they need to
be globally regulated – regulated in ways which
ensure full knowledge of beneficial ownership and
full compliance with all tax laws.
7. Complexity contributes to lack of transparency. Those
seeking secrecy understand this, and create
complex webs of corporations and trusts, to
make it more difficult for enforcement
agencies to trace flows of illicit funds and to
identify the true beneficiaries of illicit
activities. This has two implications:
(a) The international community should do
what it can to impede the creation and
maintenance of these complex webs; and
(b) to effectively fight for transparency – to
detect true beneficial ownership –
requires resources beyond those
available to enforcement agencies.
(2018) 1 LAW Overcoming the Shadow Economy (Joseph Stiglitz & Mark Peith)
8. Transparency is a global public good, requiring
global efforts. To facilitate these efforts, every
country must maintain publicly searchable
registries of the beneficial owners of each
corporation, trust, foundation, or other entity.
9. Financial centers (both onshore and offshore) are
creations of globalization – and should not be
allowed to engage in regulatory and tax arbitrage.
Doing so undermines the positive effects of
globalization. If secrecy-havens serve as centers
for tax avoidance and evasion or in any way
facilitate corruption or illicit activities, they are
acting as parasites, and should be cut off from
the global financial community.
10. What matters is not just passing laws and
regulations, but enforcement. There is urgency:
even if the »first best« framework cannot be
immediately achieved, there are intermediate
steps that can and should be taken.
Throughout this Report, we have come down
solidly on the side of »tough« sanctions,
simply because there are many strong
incentives for laxity. Those who benefit from
secrecy and lax enforcement of the
regulations designed to promote transparency
will put pressure on governments not to
enforce these regulations. The pressure is
asymmetric: though societal benefits from
transparency may be huge, there is no natural
lobby group for transparency, and especially
no lobby group with the resources of those
lobbying for lax enforcement.
The following recommendations are offered
against this backdrop.
2) RECOMMENDATIONS
a) Inclusive International Cooperation on Standard
Setting and Implementation
All countries, and especially developing ones,
should participate in all relevant multilateral fora
where international tax and transparency norms
are set and in doing so, should be active
advocates of high standards and demonstrate a
willingness to adopt higher standards of
transparency and to work to see that they are
uniformly applied. And these fora should be open
to all countries. Even exclusive governing bodies,
such as the G20, are coming to understand that
59
59
they can no longer legitimately exclude
developing countries. The pressure to continue
this process should remain strong until all
stakeholders have an equal vote in decision-
making processes as well as equal representation
in the bureaucracies which support these fora.
Developing countries, in particular, should insert
themselves as equal participants in these
discussions, and fight for inclusion in not only
implementation and enforcement, but also
standard-setting. All opportunities for multilateral
engagement should be leveraged to build
resources and collectively negotiate standards
which reflect their national and development
priorities – but those development strategies should
not be based on tax and regulatory arbitrage.
b) Identification of Beneficial Owners and Public Registries
As indicated above, identifying beneficial owners
of accounts and of corporations is key both to enabling
automatic information exchange and to preventing
money laundering. Creating searchable registers is
already the common standard under the FATF
Recommendations and the CRS, even if the detail
needs further work in international fora. It is
crucial, in our view, however, to progress to publicly
searchable registries.
Key to stopping illicit activities is tracing money
flows – and as we have noted in Section II, one of
the reasons that those engaged in illicit activities
create complex webs of corporations and trusts is
precisely to block the tracing of money flows. If
one knew where the money that was stolen by
some dictator was hidden away, one could
potentially recover it, and hold accountable those
who facilitated the corruption. And reducing the
returns to illicit activities will almost surely
reduce the extent of such illicit activity.
National governments should establish registries of
the names of directors, registered agents, and beneficial
owners for all entities incorporated in the country and
for all trusts and foundations established within the
country. Those taking advantage of the web of
corporations to hide illicit activities know that
both the resources of enforcement agencies and
their commitment to full transparency are limited.
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60 Overcoming the Shadow Economy (Joseph Stiglitz & Mark Peith)
Whether government agencies could have
processed the mass of information involved in
either LuxLeaks or Panama Papers may be
debated. Clearly, when they have wanted to,
intelligence agencies have processed much larger
amounts of data. What is clear is that they have not
chosen to do so, or if they have, they have not made the
findings public, perhaps because of the embarrassment
to government and establishment figures around the
world. Open registers allow civil society and media to
participate in verifying the adequacy of the information
given. Therefore the ultimate goal on
identification of beneficial ownership should be
to establish meaningful public registers of
corporate entities naming the beneficiaries (at
least above a certain threshold).
c) Automatic Exchange of Tax Information
Country-by-country tax information involving
registries of beneficial owners should be the basis
of the automatic exchange of information between
tax authorities and other relevant government
regulatory and enforcement authorities. The
current international agreement implementing this
exchange is the Multilateral Convention on Mutual
Administrative Assistance in Tax Matters and
agreements under Article 6 of that Convention.
All countries should play an active role in
implementing these agreements in domestic law
and strengthening domestic institutions for
enforcement. Developed countries should play a
supporting capacity building role and begin by
sharing information on a non-reciprocal basis
with developing countries involved in programs
to strengthen their capacity to receive, interpret,
and safeguard such information.
On the other hand, it is not the duty of any
country to determine a foreigner’s home income tax
obligations. Each country should be responsible for
monitoring economic activities that occur within
their jurisdiction. If country A cannot tell what
economic activity has occurred within its own
boundaries, why should we expect any other
country to be able to do so? Of course, to
ascertain the full import of cross-border activities
(e.g. a company in country A may claim to be
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paying interest to someone in country B) may
require cooperation with other countries. And it
may be important for country A to know who the
beneficial owners of some company or trust in
country B are – they may in fact be citizens or
residents of country A – and, country B should be
able (and obligated) to provide the information to
the home country.
d) Information Gathering, Disclosure,
and Verification
Information can only be exchanged if it is
collected. Failure to collect such information at
the domestic level is unacceptable. Here are some
of the ways that secrecyhavens can improve their
information gathering capacities and
performance:
In order to penetrate the web of corporations,
trusts, and foundations, one decisive step could
be to clean out the web, eliminating zombie
entities. To do this, corporations and other legal
entities, such as trusts, foundations, etc., should
pay a fee and file a report on an annual basis. In
addition to the benefits of information collection
and risk assessment, annual reports and fees
reduce the number of »dead« corporations, which
can be used as distraction in investigations.70 70
The annual report should include identities of
beneficial owners, in addition to contingent or
potential beneficiaries.71 The annual report should
state all jurisdictions in which the entity has carried on
economic activities over the past year, and include the
tax returns filed with each jurisdiction in which it has
operated. If it has operated but filed no tax return
in a particular jurisdiction, it should file an
affidavit that it is not subject to taxation in that
jurisdiction.
70
By the same token, any trust or foundation should be
required to be registered, with a declaration of the
beneficial owner(s) and beneficiaries of the trust or
foundation and those having effective control.
71
For instance, in some trusts, the beneficiary is A, but if A
dies, then B becomes the beneficiary. Trustees, settlers
and all other relevant persons referred to in the trust
documents should also be identified.
(2018) 1 LAW Overcoming the Shadow Economy (Joseph Stiglitz & Mark Peith)
In its annual filing, any corporation, trust, or
foundation incorporated in the country should be
required to disclose the location of its economic
activities; its assets, employees and profits within
each jurisdiction in which it operates as well as
the taxes it pays in that jurisdiction. Tax returns
should be signed off by a senior corporate/ foundation
officer or settler of a trust72 as well as an external
certified public accountant attesting to the
accuracy of the tax filing. In addition, the annual
report should have a signed affidavit from the
directors listing the beneficial owners. In the case
of trusts, the trustees and settlers should sign an
affidavit listing the beneficiaries, including
contingent and potential ones. In all cases, there
should be certification that they have personal
knowledge of the ultimate beneficial owners /
beneficiaries.73
e) Supervision of Intermediaries
In addition to supervision of banks and
business entities, a state must also adequately
supervise intermediary service providers, such as the
legal industry. We have already noted one basic
obligation of a lawyer or any licensedagent
registering a corporation or other business entity:
to attest to personal knowledge of the ultimate
beneficial owners. In addition, the lawyer should
have a positive obligation to ensure that there is a
genuine economic motive for the existence of the
company, and should be required to state that
purpose, along with the intended location of the planned
economic activity in the filing of incorporation. It will
72
A settler of a trust is the person who settles or donates
property under the trust to another person, called a
beneficiary.
73
The annual report should also state whether there has
been any change in the activities in which the entity has
been engaged in, or any change in directors, nominees,
or other relevant individuals with an affidavit that the
change has been conducted according to the by-laws of
the entity, and that the new directors or nominees are
fully aware of the natural person(s) who are ultimate
beneficiaries. Additionally if there have been any change
in the beneficiaries or trustees of a trust, those changes
should be reported along with any payments made in
respect to those changes, and include a certification that
all taxes on such transfers have been duly paid.
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61
be noted that lawyers acting as financial
intermediaries, fiduciaries, and company incorporators
outside the traditional field of legal work do not –
according to international standards – enjoy legal
privilege. Any lawyer, registered agent, or other actor
who knowingly registers a corporation or trust whose
primary purpose is to evade or avoid taxes or to engage
in money laundering should be subject to suspension,
and in the case of multiple offenses, revocation of
his / her license to practice law. Registered agents not
complying with tax and financial information
reporting provisions above should also be subject
to adequate sanctions.
f) Real Estate Transactions
Real estate has provided a convenient way for
facilitating secrecy and money laundering. Recent
news coverage of cash purchases of luxury
apartments in New York City and London
suggests that perhaps a majority are owned by
entities in secrecy-havens.74 The United States
has belatedly responded by requiring disclosure
of beneficial ownership for real estate cash
transactions in certain locations.75 Such disclosure
should be made mandatory – and enforced – for all
large real estate cash transactions, and the countries in
which the corporations, trusts, etc. are incorporated
should require filing of all real estate related cash
transactions. In addition, the Criminal Finances
Bill recently introduced in the UK House of
Commons introduces the concept of »unexplained
wealth orders.« These orders will allow agencies
tracking financial transactions to force the owner
of an asset to explain how they obtained the funds
to purchase it. Unexplained wealth orders would also
help reveal the owners of real estate.76 This two-sided
approach may succeed in making headway
against the use of real estate for money
laundering and other illicit activities.
74
See Story (2016). Land Registry figures show UK real
estate worth more than 170 billion pounds is held by more
than 30,000 tax haven companies. See Garside (2016).
75
See U.S. Department of the Treasury (2016).
76
See U.K. Parliament, Parliament Business, Criminal
Finances Bill 2016–17, available at http://services.
parliament.uk/bills/2016-17/criminalfinances.html.
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62 Overcoming the Shadow Economy (Joseph Stiglitz & Mark Peith)
The FATF toughened up AML standards
regarding cash transactions in 2012. Regarding
taxation, it should be the obligation of any lawyer, real
estate agent, or broker to report all cash purchases of
real estate to tax authorities, listing the amount of
the purchase and the name of the beneficial
owners of the purchasing entity. Of course, most
countries have (or should have) national property
registries, with registration required to enforce
property rights. Full and public disclosure of the
beneficial owners should be a condition for registering
ownership.
We have already discussed the obligations
imposed on lawyers conducting these and similar
transactions. Similarly, any systematic pattern of
violations within a legal or brokerage firm should
be punished by suspension or permanent
revocation of the license of all the lawyers and/or
agents within these firms. It is the responsibility of
all professionals within the firm to ensure that partners
and associates and/or brokers and agents are not
engaged in such activities. Again, the resources
available to the government for monitoring are
limited. Partners can be an important part of the
monitoring process.
g) Responsibilities of Corporate Fiduciaries
Today, a single agent may »represent« hundreds if
not thousands of corporations. In many countries,
there are no limits to the number of boards of directors
in which a person may participate, and it may be
common for the members of the board of
directors to have no real connection to or with the
operations or ownership of the company.
Therefore, it would not be unusual to find
janitors, secretaries, or drivers of a law firm listed
as members of the board of directors of a
company served by the same law firm which
employs them. It should be obvious that it is
almost impossible for any single agent – and
especially one without adequate support staff – to
fulfill his or her responsibilities, assuming of
course the entity is a real entity.
Thus, nominee directors, or even officers, should
only be allowed to serve on a limited number of boards
or management positions, as it is impossible to
adequately fulfill fiduciary obligations to a
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multitude of interests. Performance of duties of
care and loyalty implicated in fiduciary
relationships undertaken by directors, officers,
and managers becomes inadequate when
engagement is unduly limited.
h) Institutional Capacity, Implementation,
and Enforcement
Another foundational requirement concerns
institutional capacity. All regulatory institutions
which administer the exchange of information
and supervise financial institutions and associated
service providers (accountants, registered agents,
attorneys, etc.) must have suitable personnel
meeting the highest professional standards, and
must also have adequate independence and
budgetary resources to carry out their duties. And
it is especially important to ensure that there are no
conflicts of interests affecting government employees
and public officials tasked with oversight.77
Some secrecy-havens have responded to the
demand for more transparency by merely passing
laws, which are modeled after other seemingly
respectable jurisdictions. Yet, some of these
jurisdictions, even if they are »onshore,« are
themselves secrecy-havens. The thrust of this
report is that we have to curb secrecy-havens, whether
they are on- or offshore, and it is not a defense to say
that the legal framework is no worse than that of other
jurisdictions. Furthermore, one should always be
careful about “legal transplants”. Even similar laws
can have quite different consequences under different
legal systems. Finally, and perhaps most
importantly, what matters is not just passing laws, but
enforcing them.
Modelling one country’s laws after another is
not sufficient by itself, but must be complemented
by a strong and impartial judiciary and regulatory
77
Such conflicts of interest may be reduced through
the following disclosures before hiring / elections:
(1) Disclosure of beneficial owner of any entity, foreign
or domestic, especially non-transparent companies,
trusts, and/or foundations; (2) Disclosure of any financial
support and/or campaign contribution from any
participant in the financial services sector; (3) Disclosure
of previous professional employment and/or board
membership of the industries being regulated.
(2018) 1 LAW Overcoming the Shadow Economy (Joseph Stiglitz & Mark Peith)
institutions to administer and enforce the law. Such
laws must also fit within the context of the
country’s legal system as a whole as other laws
may be needed to complement or support laws
enacted to promote transparency – and other laws
may have to be repealed. Further, the impact and
interaction of laws should be monitored to determine
necessary amendments. For instance, in some
countries it is illegal to disclose information that is
supposed to be secret – even if that disclosure itself
would enable the enforcement of anti-corruption laws.
There is also the need to address circumvention of
the intent of regulations, and anti-abuse provisions
in legislation can go a long way in providing the
means for regulatory authorities to circumscribe
such circumvention. For example, attestation
clauses and »know your client« obligations must
require direct and personal knowledge.78
i) WHISTLEBLOWER PROTECTION
Finally, all countries should have strong
whistleblower protections for public and private
employees in regulated sectors.79 Instead of being
protected, however, whistleblowers are often
prosecuted: former PwC employee Antoine
Deltoure is now appealing a one-year prison
sentence and a 1,500 euros fine for leaking secret
tax rulings made by Luxembourg, which enabled
over 340 companies to set up complex company
structures to avoid corporate income tax globally.
Whistleblowers have not only exposed massive tax
avoidance by respected global corporations, but have
also exposed the identities of individual owners of
hundreds of thousands of shell companies, foundations,
and trusts set up through thousands of intermediaries
all over the world to evade taxes, launder money, and
hide wealth. »If You See Something, Say Something«
should not just be reserved for public security, but
should apply to all cases of secrecy where the public
interest is at stake.
j) FREEDOM OF INFORMATION ACT
A strong Freedom of Information Act (FOIA) is at
the heart of transparency and citizen engagement. The
78
See, e. g., US Bank Secrecy Act, 31 U.S.C. 1051 et seq.
and regulations under 31 C.F.R. 1020.220, 1023.220,
1024.220, and 1026.220.
79
See Wolfe, et al. (2014).
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63
gatekeeper of enforcement is the judiciary, and judges
possess the power to block or inordinately delay
release of information, or authorise heavy
redaction. Therefore, FOIA legislation should
include clear criteria for release of information
with limited and time-bound judicial discretion.
k) REVIEW PROCESSES
The global economy is dynamic and evolving, as are
global standards. The private sector is innovative in
creating new ways to obfuscate and prevent
transparency. Therefore constant monitoring of the
implementation of international and domestic standards
is crucial. This can be done in different ways.
According to one approach, a government may
establish an Independent Standards Review
Commission to review both legislation and enforcement,
to ascertain whether there are gaps between country
practices and global best practices and norms.
Membership should be structured to avoid
potential conflicts of interest and, to assure
independence from local pressure groups, should
be comprised of a mix of in-country and out-of-
country experts. An annual public report should
identify gaps between international standards and
current legislation, and gaps between what the
international standards are likely to be in the
coming years and current legislation. In the area
of enforcement, the Commission should review
the structure, resources, and performance of all
relevant regulatory bodies.
The Standards Review Commission should also be
complemented by an Independent Resources Review
Commission, again composed of a mix of in-
country and out-of-country experts, vetted for
conflicts of interest. The Independent Resources
Commission should provide an annual public
assessment of gaps in skills and other resources
impeding effective regulation, supervision, and
enforcement, with a particular focus on institutions
of higher education training professionals in
legal, accounting, and auditing affairs; and
propose a timeline of actions to address and
remedy these resource deficiencies.
Country reviews by international organizations
could also be intensified with input by NGOs and
academia worldwide.
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64 Overcoming the Shadow Economy (Joseph Stiglitz & Mark Peith)
l) TAX PREFERENCES
As discussed in Part II of this Report, tax
preferences, in the form of exemptions and
incentives targeted to attract foreign investment,
not only bring limited benefits in terms of
promotion of long term sustainable growth, they
also place domestic firms at a competitive
disadvantage. More perniciously, tax preferences
also combine with secrecy to enable and encourage tax
avoidance and evasion on a massive scale, and in many
instances play a role in attracting money laundering
operations. Tax exemptions and incentives on
profits from activities within special economic
zones should be subject to tight scrutiny,
establishing whether the profits booked within
those zones are commensurate with the level of
actual economic activities that have occurred, as
indicated by employment and capital.
Furthermore, companies receiving tax
exemptions and incentives should receive them
only where they are not used to shift recorded
profits from other jurisdictions: the incentive to
claim that profits have been earned in a low tax
jurisdiction, even when they have not, is too
tempting for many firms to resist. Any firm that
has been found to have engaged in systematic
profit shifting (whether associated with money
laundering or not) should lose the benefits of its
tax preference, and such loss of tax preference
should be extended to any firm, trust, or
foundation with substantial overlap of beneficial
ownership or directorship. Additionally, no tax
preferences should be extended to any firm whose
beneficial owner has been associated with money
laundering or previously convicted of tax evasion.
In this regard, an Independent Tax Review
Commission should evaluate whether the social and
economic benefits of tax preferences (for example, in
terms of job creation and indirect tax revenues
generated through the activities stimulated) are
worth the costs (for example, through diversion of
domestic economic activity; the associated loss of
tax revenues; and exposure of the country to the
risks of association with tax avoidance, evasion,
and money laundering). This Review
Commission should publish all tax preferences as
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budget expenditures in an annual public report
along with the social and economic benefits from
such preferences.
3) EXCEPTIONS
As we engaged in discussions with those in
secrecy-havens over the costs and benefits of
secrecy, the defences of personal security, the
individual’s right of privacy, and commercial
confidentiality protections were repeatedly
asserted. First of all, these concerns have been
exaggerated and there are means by which these
»exceptions« can be handled.
In regard to personal security, one of the
arguments put forward is that lifting secrecy will
divulge details concerning wealth, making
individuals prey to kidnapping. But an individual’s
lifestyle is a far more significant signal concerning their
wealth: living in a multimillion dollar home signals that
an individual is very well off. Moreover, an
individual’s right to privacy is not absolute and must
defer when basic human rights are compromised by a
global secrecy network that enables human trafficking,
government corruption, and the financing of terrorism.
Indeed, in some cases, secrecy has itself undermined
national security.80
In regard to commercial privacy, corporations
may argue that such transparency violates their
basic rights, but as mentioned in Principle #6,
corporations have no inalienable rights. They are not
automatically endowed with human rights as
individuals are. Corporations are creations of the state,
and as such, the state has the right to endow them with
whatever rights and responsibilities it believes serves
societal interests, such as limited liability, patent
protections, etc., and in each case, there is a cost
benefit analysis.
It is also important to note that none of the
arguments for secrecy hold up in the case of disclosure
to regulatory and law enforcement authorities. One of
the specious arguments put forward is that
disclosure to certain governments will lead to
leakage; but a condition for the automatic exchange of
information is that the agencies with whom the
information is being exchanged have the capacity to
keep the information confidential.
80
See supra note 7.
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Finally, the global community has the right to
impose restrictions on any country seeking to
participate in the benefits of financial globalization – if
what they do has adverse effects on other
countries. Secrecy imposes harm on the entire global
community. Thus, each country, and the global
community, has both the right and the obligation
to curtail secrecy. The recommendations in this
section, and elsewhere in this report, are all made
with these perspectives in mind.
V. What is at Stake in the Fight against Secrecy?
This Report has discussed why secrecy has
such an adverse effect and what can be done to
shut down tax and secrecy-havens around the
world. In these concluding remarks, we seek to
put this Report into a broader perspective of the
ongoing debate about globalization.
There is obviously a great deal of discontent with
globalization, not only in developing countries, but
also increasingly in developed ones. It has
become increasingly clear that while there may
have been benefits to economic growth from
globalization, at least in many countries,
distributive effects have outweighed growth
effects for large segments of the population: there
are many individuals who see themselves not just
relatively worse off, but absolutely so.
While the benefits of globalization have been multi-
faceted, including moving more than half a billion
people out of poverty during the past half century
and the global spread of ideas and values such as human
rights, it is also clear that globalization has had its
darker side: just as good things move more easily
across borders, so do bad things – like terrorism.
Additionally, globalization has not only contributed to
the growth of inequality, it has actually impaired the
ability of governments to address it: those who seek
to avoid declaring ownership or paying their fair
share of taxes can more easily move to some
jurisdiction to hide their wealth or avoid taxation.
This Report and reports by the Independent
Commission on the Reform of International
Corporate Taxation (ICRICT) have highlighted
two of the more unsavoury aspects of
globalization. The ICRICT Declaration showed
65
65
how transfer pricing in the existing corporate tax
system provides an easy framework within which
multinationals can avoid taxation, and fuels a race
to the bottom as different countries compete to
attract business not in a positive and healthy way
– by, for instance, providing a more educated
labour force, better infrastructure, or a superior
legal framework – but rather by lowering taxes.
Unfortunately, irresponsible governments have
shown a willingness to avail themselves of this
framework; countries like Ireland showed that for
a pittance – a small increase in incorporation fees
and a few jobs – they were willing to rob their so-
called EU partners of billions of euros in tax
revenues. Many Irish citizens found the stance of
their government morally repugnant and many of
Apple’s shareholders rightly understand that the most
important aspect of corporate responsibility is paying
your fair share of taxes. While there may be
disagreements about what that fair share is, Apple’s
effective tax rate of 0.005 percent crossed the moral
boundary.
This Report focuses on something even more
corrosive of the global community: the secrecy-
havens, which provide ample opportunity not just for
facilitating tax avoidance and evasion, but also money
laundering – thus facilitating all manner of corruption
and socially destructive and morally repugnant
activities.
These negative impacts of globalization
qualitatively differ from other oft-criticized
aspects, like trade and financial globalization:
there is no benefit to offset the immense social
costs. In a global community, the secrecy-havens
have provided a place for bad actors to hide both their
illegal activity and their money from detection.
Of course, we know that these activities are
going on. But if we are to stop them, we have to
know who is doing what, and we have to take
away the huge financial incentives for those
engaging in them. The secrecy-havens enable
criminals to enjoy the fruits of their bad behaviour and
thus, continue all the more. And the secrecy-havens
make it virtually impossible to penetrate the web
of bad actors. When we find out who is the owner
of a bank account into which illicit funds have
Law Animated World, 28 February 2018
66 Overcoming the Shadow Economy (Joseph Stiglitz & Mark Peith)
been deposited, it turns out to be a company
incorporated in another secrecy haven, and law
enforcement and investigative journalists alike
face a dead end.
A major lesson emerges: in our global economy,
transparency is only as strong as the weakest link – as
the least transparent member of the global community.
There are two major implications: Secrecy has to be
tackled globally and there has to be zero tolerance for
any deviation from the established global norms.
REFERENCES
Bonucci, Nicola (2014): »Article 12, Monitoring and Follow-Up,« in:
Pieth, M. / Low, L.A. / Bonucci, N. (eds.), The OECD Convention on
Bribery: A Commentary, 2nd ed., Cambridge, 534 et seq.
Dougherty, Carter (2016): »Wall Street Breaks with Business Lobby
Over Corporate Registration Rules,« 18 Oct. 2016.
Financial Action Task Force (2012): International Standards on
Combating Money Laundering and the Financing of Terrorism and
Proliferation, The FATF Recommendations.
— (2000): Report on Non-Cooperative Countries and Territories.
— (1990): The Forty Recommendations of the Financial Action Task
Force on Money Laundering.
Florini, Ann (ed.) (2007): The Right to Know: Transparency for an Open
World, Columbia University Press: New York.
G20 (2009): Leaders’ Statement, London Summit, 2 April 2009, para. 15.
— (2014): Communique, Finance Ministers, Central Bankers, July 24, 2016.
Garside, Juliette (2016): »Hundreds of Properties Could Be Seized in UK
Corruption Crackdown,« Guardian, 13 Oct. 2016.
Government of Panama (2014): Plan Estratégico de Gobierno: 2015-2019.
Greenwald, Bruce / Stiglitz, Joseph E. (1986): »Externalities in
Economies with Imperfect Information and Incomplete Markets,«
Quarterly Journal of Economics, Vol. 101, No. 2, May 1986, pp. 229–264.
Harding, Luke (2016): »Mossack Fonseca: inside the firm that helps the
super-rich hide their money,« Guardian, 08 April 2016, accessed 12 Oct. 2016.
Henry, James (2012): The Price of Offshore Wealth Re-visited: Tax
Justice Network Report, July 22, 2012.
Independent Commission for the Reform of International Corporate
Taxation (2015): Declaration.
Knobel, Andres / Meinzer, Markus (2016a): Drilling Down to the Real
Owners, Part I, 18 May 2016 Tax Justice Network Report.
— (2016b): Drilling Down to the Real Owners, Part II, 28 June 2016 Tax
Justice Network Report.
Moynihan, Daniel (1998): Secrecy, Yale University Press: New Haven.
Obermayer, Bastian / Obermaier, Frederik (2016): The Panama Papers,
One World: London.
OECD (2015a): OECD/G20 Base Erosion and Profit Shifting Project:
Countering Harmful Tax Practices More Effectively, Taking into Account
Transparency and Substance, Action 5: 2015 Final Report.
— (2015b): Standard for Automatic Exchange of Financial Information in
Tax Matters: The CRS Implementation Handbook, 2015.
— (2014): Standard for Automatic Exchange of Financial Account
Information in Tax Matters, 2014.
Pearl, Morris (2016): »How Companies Like Apple Dodge Taxes and
Their Own Investors,« New York Times, 21 Sept. 2016.
Pieth, Mark / Aiolfi, Gemma (2003): »The Private Sector Becomes
Active: The Wolfsberg Process,« in: Andrew Clark & Peter Burrell (eds.),
A Practitioner’s Guide to International Money Laundering Law and
Regulation, Old Woking, 267 et seq.
— (2007a): »The Wolfsberg Process,« in: Wouter H. Kälin / Christian H.
Kalin / John G. Goldsworth (eds.), Anti-Money Laundering: International
Law and Practice, Chichester, 93 et seq.
Law Animated World, 28 February 2018
66
(2018) 1 LAW
— (2007b): »Multi-stakeholder Initiatives to Combat Money Laundering
and Bribery«, in: Christian Brütsch and Dirk Lehmkuhl (eds.), Law and
Legalization in Transnational Relations, London / New York, 81 et seq.
— (2008a): »Harmonising Criminal Law: Preventing Corruption, A Case
Study«, in Mireille Delmas-Marty, Mark Pieth and Ulrich Sieber (eds.),
Les Chemins de l’Harmonisation Pénale: Harmonising Criminal Law,
Paris, 225 et seq.
— (2008b): »The Agents of Change«, in Mireille Delmas-Marty, Mark
Pieth, and Ulrich Sieber (eds.), Les Chemins de l’Harmonisation Pénale:
Harmonising Criminal Law, Paris 369 et seq.
— with Stephanie Eymann (2009): Combating the Financing of
Terrorism—the »Guantanamo Principle«, in: Mark Pieth / Daniel
Thelesklaf / Radha Ivory (eds.), Countering Terrorist Financing: The
Practitioner’s Point of View, Bern et al. 2009, 173.
Pogge, Thomas / Mehta, Krishen (2016): Introduction, »The Moral
Significance of Tax-Motivated Illicit Financial Outflows«, in: Thomas
Pogge and Krishen Mehta (eds.), Global Tax Fairness, Oxford University
Press: Oxford, 1 et seq.
Sepúlveda, Magdalena (2014): Report of the Special Rapporteur on
Extreme Poverty and Human Rights, Magdalena Sepúlveda Carmona,
United Nations, A/HRC/26/28, 22 May 2014.
Stiglitz, Joseph E. (2001): »On Liberty, the Right to Know and Public
Discourse: The Role of Transparency in Public Life«, in: Ha-Joon Chang
(ed.), The Rebel Within, London: Wimbledon Publishing Company, pp.
250–278; also published in Matthew Gibney (ed.), Globalizing Rights,
Oxford: Oxford University Press, 2003, pp. 115–156. (Originally
presented as 1999 Oxford Amnesty Lecture, Oxford, January 1999.)
— (2002): »Transparency in Government«, in: R. Islam, (ed.), The Right
to Tell: The Role of Mass Media in Economic Development, WBI
Development Studies, Washington, D.C.: World Bank Institute, pp. 27–44.
— with Mark Pieth (2016): »The Real Scandal Behind the Panama
Papers«, Vanity Fair, 29 September 2016.
Story, Louise (2016): »U.S. Will Track Secret Buyers of Luxury Real
Estate.« New York Times, 13 Jan. 2016.
U.S. Department of the Treasury (2016): Press Release, FinCen Takes
Aim at Real Estate Secrecy in Manhattan and Miami, 13 January 2016.
Wolfe, Simon / Worth, Mark / Dreyfus, Suelette / Brown, A. J. (2014):
Whistleblower Protection Laws in G20 Countries Priorities for Action,
September 2014.
Wolfsberg (2000 / 2002 / 2012): Anti-Money Laundering Principles for
Private Banking.
— (2002a): Statement, The Suppression of the Financing of Terrorism.
— (2002b): Anti-Money Laundering Principles for Correspondent Banking.
— (2006): Guidance on a Risk-Based Approach for Managing Money
Laundering Risks.
— (2007): Wolfsberg Statement against Corruption.
— (2011): Wolfsberg Anti-Corruption Guidance.
*****
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 WILL THE CONSPIRACY AGAINST TRUMP AND
AMERICAN DEMOCRACY GO UNPUNISHED ?
This is one of the most important articles
I have recently written, along with the one titled
‘Nuclear Posture Review’ [- published in summary in
the last issue of this journal]. If the Russiagate
conspiracy against Trump and American
democracy goes unpunished, accountable
government in the United States will cease to
exist. US security agencies have long been
involved in coups against foreign governments.
Now they are involved in one against America.
There is great danger that Republicans are so
worshipful of “national security” and so
determined to protect the reputation of the US
government that they will give a pass to the high
officials who participated in a conspiracy against
the United States. As for President Trump, he
lacks a government that he can count on and is
threatened by the military/security complex. The
conspiracy could easily be whitewashed as
merely a case of the FBI and DOJ not following
proper procedures, with the media’s participation
in the conspiracy being dismissed with mea
culpas of “sloppy reporting.”
Will The Conspiracy Against Trump and
American Democracy Go Unpunished?
“In keeping silent about evil, in burying it so deep within
us that no sign of it appears on the surface, we are
implanting it, and it will rise up a thousand fold in the
future. When we neither punish nor reproach evildoers,
we are not simply protecting their trivial old age, we are
thereby ripping the foundations of justice from beneath
new generations.” – Aleksandr I. Solzhenitsyn
The American people do not realize the seriousness
of the Russiagate conspiracy against them and President
Trump. Polls indicate that a large majority of the
public do not believe that Trump conspired with
Putin to steal the presidential election, and are
tired of hearing the media prostitutes repeat the
absurd story day after day. On its face the story
makes no sense whatsoever. Moreover, the leaked
♣
Courtesy: Paul Craig Roberts at www.paulcraigroberts.org;
dated 5 February 2018; emphases in bold ours - IMS.
67
- Dr. Paul Craig Roberts♣
emails are real, not fabricated. The emails show
exactly what Hillary and the DNC did. The public
knows that these transgressions were pushed out
of news sight by the false story of a Trump/Putin
conspiracy. The fact that the entirety of the US print
and TV media served in a highly partisan political way
to bury a true and disturbing story with a fake news
story – Russiagate – is one reason some polls show that
only 6% of Americans trust the mainstream media. All
polls show that large majorities of independents,
Republicans, and youth distrust the mainstream
media. In some polls about half of Democrats
trust the media, and that is because the media is
servant to Democratic Party interests.
Russiagate is a dagger aimed at the heart of
American governmental institutions. A conspiracy
involving top officials of the Obama Department
of Justice, FBI, and other “security” agencies was
formed together with Hillary Clinton and the
Democratic National Committee, the purpose of
which was to defeat Trump in the presidential
election and, failing that, to remove Trump from
office or to discredit him to the point that he
would be reduced to a mere figurehead. This
conspiracy has the full backing of the entirely of
the mainstream media. In other words, it was a
coup not only against Donald Trump but also against
American democracy and the outcome of a presidential
election.
There is no doubt whatsoever about this. The
facts are publicly available in the declassified
Top Secret Memorandum Opinion and Order of
the FISA Court – https://www.dni.gov/files/
documents/icotr/51117/2016_Cert_FISC_Memo_
Opin_Order_Apr_2017.pdf and in the declassified
report from the House Intelligence Committee –
given by the presstitutes the misleading name of
the “Nunes Memo,” as if it is Nunes’ personal
opinion and not the findings of months of work
by an oversight committee of Congress – https://
www.documentcloud.org/documents/4365354-
370598711-House-Intelligence-Committee-
Law Animated World, 28 February 2018
68 Conspiracy against Trump & American Democracy to go unpunished? (Dr. PCR) (2018) 1 LAW
Report-on.html?embed=true&responsive=false
&sidebar=false .
All of this information has been posted on my
website for some time. If you have difficulty
following my explanation, former US Attorney
Joe DiGenova explains the felony actions by the
FBI and Obama Justice (sic) Department here:
https://www.zerohedge.com/news/2018-01-
21/brazen-plot-exonerate-hillary-clinton-and-
frame-trump-unraveling-says-former-fed
Briefly, the National Security Agency discovered
that the FBI and DOJ were abusing the surveillance
system. As a favor of one security agency to
another, NSA Director Adm. Rogers permitted
the FBI and DOJ to rush to the FISA Court and
confess their transgressions before the NSA
informed the Court. The FBI and DOJ pretended
that their deception of the Court in order to obtain
surveillance warrants for highly partisan political
purposes was not due to their intent but to
procedural mistakes. The FBI and DOJ told the
Court that they were tightening up procedures so that
this would not happen again. The FISA Court
Memorandum and Order clearly states:
“On October 24, 2016, the government orally
apprised the Court of significant non-compliance
with the NSA’s minimization procedures
involving queries of data acquired under Section
702 using U.S. person identifiers. The full scope
of non-compliant querying practices had not
been previously disclosed to the Court.”
What this legal jargon is saying is the FBI and
DOJ confessed to obtaining warrants under false
pretexts. These are felonies: https://www.
globalresearch.ca/nunes-memo-reports-crimes-at-
top-of-the-fbi-and-the-department-of-justice/
5628246
The FISA Court Memorandum and Order is
about resolving these deficiencies and returning
the FBI and DOJ to legal practices. For example,
the Court Memorandum and Order says:
“On January 3, 2017, the government made a
further submission describing its efforts to
ascertain the scope and causes of those
compliance problems and discussing potential
solutions to them. See January 3, 2017,
Law Animated World, 28 February 2018
68
Supplemental Notice of Compliance Incidents
Regarding the Querying of Section 701-Acquired
Data (“January 3, 2017 Notice”). The Court was
not satisfied that the government had sufficiently
ascertained the scope of the compliance
problems or developed and implemented
adequate solutions for them and communicated a
number of questions and concerns to the
government.”
In other words, the FBI and DOJ were attempting
to make corrections to their “compliance problems” in
ways that would allow them to continue to
mislead the FISA Court, and the Court wasn’t
letting them.
The FISA Court Memorandum and Order was
released prior to the House Intelligence
Committee report and has been completely
ignored by the utterly corrupt press prostitutes.
The FISA Court Memorandum and Order, relying
on the confessions of the FBI and DOJ, verifies
the House Intelligence Committee report that the
FBI and DOJ illegally obtained spy warrants for
partisan politial purposes.
Rep. Adam Schiff, a Democrat who is a
disgrace to the voters of his California district, to
the Democratic Party, and to the House of
Representatives, knows full well that the FBI and
DOJ deceived the FISA Court. Schiff is so partisan
that he lies to the hilt in the face of hard documented
evidence from both the FISA Court and his own House
committee. Schiff is so totally devoid of all
honesty and integrity that he is the perfect leader
for a shithole country, something that he and his ilk are
turning the United States into.
The honest left – not the Identity Politics left, which
is a collection of deranged idiots – does not believe a
word of the concocted Russiagate conspiracy against
Trump. They object to the Russiagate conspiracy not
because they like Trump, which they most certainly do
not, but because they understand that it is a lie directed
against truth. They understand that the American
mainstream media has deserted factual, truthful
reporting and serves as a propaganda ministry for
the war/police state that American is becoming.
For example, Eric Zuesse holds The Atlantic
and its presstitute writer, David A. Graham, to
(2018) 1 LAW 9/11: An Excuse for an already planned Invasion of Iraq (Paul Craig Roberts)
account for lying about the House Intelligence
Report: http://rinf.com/alt-news/editorials/
democratic-partys-hack-atlantic-tries-dismiss-
nunes-memo/
Andre Damon writes on the World Socialist
Web Site: “The Democratic Party was thrown
into disarray Friday after the publication of a
classified memo exposing as a factionally-
motivated witch hunt the investigation by leading
intelligence agencies into the Trump
administration’s alleged collusion with Russia. …
The release of the memo once again underscores
the fact that the US intelligence agencies have
massively intervened in US politics.” https://
www.globalresearch.ca/release-of-nunes-memo-
throws-anti-russia-campaign-into-disarray/
5628233
The real left, as opposed to the fake left,
understands that the people have no chance when the
highest officials of the Department of Justice and the
security agencies join in a conspiracy against a
democratic outcome. When the justice and police
authorities have no respect for the truth, as the
Russiagate conspiracy proves, the people are
doomed. If the FBI-DOJ-DNC-presstitute conspiracy
goes unpunished, The Lie will have prevailed over The
Truth and all of us will be endangered.
The important question before us is: will the
treasonous criminals in the FBI, DOJ, and DNC be
indicted and held responsible? Or do high government
officials get a pass as do the police who rob and murder
citizens and never face justice for their crimes?
From the sound of things, it looks like they will
get a pass. Rep. Nunes felt compelled to say on TV
how much he likes Deputy Attorney General Rod
Rosenstein, who is a party to the deception of the
FISA Court. President Trump says he will not fire
the conspirator against him, Robert Mueller, even
though both Trump and Mueller know that the
Russiagate investigation headed by Mueller is a
concocted conspiracy against American
democracy and the President of the United States.
It seems that high government officials, like state
and local police and executives of “banks too big
to fail,” are above the law.
69
69
What about the FISA Court, readers ask, why
did the FISA Court let the FBI and DOJ get away
with their illegal acquisition of spy warrants?
Once the Court knew about it, the Court did not
let them get away with it, as the Memorandum
and Order makes clear. The FISA Court does not
have prosecutorial power to indict and bring a
case against the FBI and DOJ criminals. That has
to be done by the DOJ, and the DOJ is not going
to indict itself.
Former US Attorney Joe DiGenova believes
that continuing investigations will result in high
officials being indicted, convicted, and sent to
prison. If the US is to have any future as a
country in which government is accountable to
law, it is essential that DiGenova be correct.
However, I will believe it when I see it.
***
9/11 Was the Excuse for an
Already Planned Invasion of Iraq
- Paul Craig Roberts (7-2-18)
9/11 was the neoconservatives’ “New Pearl
Harbor,” the excuse the neoconservatives said they
needed to launch Washington’s invasions of the Middle
East. As General Wesley Clark told us, the plan was
seven countries in five years. The plan had nothing to
do with “weapons of mass destruction,” Osama
bin Laden, “bringing democracy to
dictatorships,” “liberating women,” “Assad’s use
of chemical weapons,” “Iranian nukes,” or any of
the blatant lies concocted by the neoconservatives
and fed to an obedient presstitute media and
accepted by a gullible public.
Former Treasury Secretary Paul O’Neill Reminds
Us That the Invasion of Iraq Was on the Menu 8
Months Prior to 9/11, the Alleged Excuse for the
Invasion. From a review of Suskind’s book:
The book, “The Price of Loyalty”, written by
former Wall Street Journal reporter Ron Suskind,
is an alarming insider account of the way the
Bush White House is run, based on a series of
interviews with former administration officials,
most notably [former Treasury Secretary Paul]
O’Neill, who got the axe a little over a year ago
because of his opposition to Bush’s policy on tax-
Law Animated World, 28 February 2018
70 9/11: An Excuse for an already planned Invasion of Iraq (Paul Craig Roberts)
cuts. In the book, O’Neill raises some harsh
criticisms of the Bush administration. Among his
most powerful charges is a claim that the Bush
administration was planning to invade Iraq within days
of taking office. Appearing in an interview on
CBS’s “60 Minutes” on Sunday night to promote
Suskind’s book, O’Neill sharply criticized the
Bush administration:
“O’Neill says that the president did not make
decisions in a methodical way: there was no
free-flow of ideas or open debate. At cabinet
meetings, he says the president was ‘like a
blind man in a roomful of deaf people. There is
no discernible connection,’ forcing top
officials to act ‘on little more than hunches
about what the president might think.’
… And what happened at President Bush’s
very first National Security Council meeting is
one of O’Neill’s most startling revelations.
‘From the very beginning, there was a conviction,
that Saddam Hussein was a bad person and that he
needed to go,’ says O’Neill, who adds that going
after Saddam was topic ‘A’ 10 days after the
inauguration – eight months before Sept. 11.
… ‘It was all about finding a way to do it. That
was the tone of it. The president saying ‘Go
find me a way to do this,’’ says O’Neill. ‘For
me, the notion of pre-emption, that the U.S.
has the unilateral right to do whatever we
decide to do, is a really huge leap.'”
Less than 24 hours after O’Neill made his
critical remarks on CBS, the Treasury Department
said it is looking into how a Treasury document marked
“secret” came to appear on the show. Although
Treasury officials have been very careful not to
use the word “investigation”, the quick move looks
like retaliation. Treasury spokesman Rob Nichols
said the department’s request for a probe should
not be viewed as a way to strike back at O’Neill.
“This is standard operating procedure,” he said.
Still, the fact that the administration was so quick
in calling for a probe into the matter is in odd
contrast with the slow pace another investigation
— the one into who outed former ambassador
Joseph Wilson’s wife Valerie Plame as a CIA
operative.
*****
Law Animated World, 28 February 2018
70
(2018) 1 LAW
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 ON FLORIDA SCHOOL SHOOTING INCIDENT
The Shooting At Marjory Stoneman
Douglas High School In Parkland Florida
Readers have inquired about my silence about
the Florida shooting on Valentine’s Day. The
answer is that school shootings are not my
expertise. Moreover, a country, such as the US,
which no longer has an independent TV and print
national media, is unable to find out and is dependent
on the story told by authorities. Although it is
probably impossible to find out what happened,
independent Internet media makes it possible for a
person willing to invest the time and effort, to arrive at
a conclusion on their own. Here are some of the
things to think about.
A Parkland FL Stoneman Douglas high school
teacher says the school had been told there would be a
code red drill. When he heard shooting, he assumed it
was the drill. https:// www.youtube.com/watch?v=tAN4g66RFug
A woman, Debbie, provides videos of
reporters interviewing students who say they
were told there would be a drill with police firing
blanks with people screaming, the purpose of
which was to prepare the students in the event a
real shooting occurred. At about the 28 minute
mark in the video Parkland FL high school
students tell news reporters interviewing them
that they were told there would be a realistic drill
at the school that would simulate a real attack.
I do not know anything about Debbie. It is
important to note that it is not Debbie who is
making the claims. The interviews with the
students are interviews broadcast by news
organizations.
Debbie’s video could have been better
organized, much shorter, and less confusing.
Instead of preparing a concise report beforehand,
she prepares her report as you watch. At the 55
minute mark Debbie becomes emotional over the
gullibility of the public and the inability of
Americans to see the inconsistencies between the
♣
Courtesy: Paul Craig Roberts at www.paulcraigroberts.org;
dated 26-02-2018; emphases in bold ours - IMS.
71
- Dr. Paul Craig Roberts♣
official timeline and news reports and the
inconsistencies between the evidence the media
presents and the media’s explanation of the
evidence.
There is no doubt about the inconsistencies.
Whether this is just sloppy reporting or simply
reporters reading the official story off of pre-
prepared press releases I do not know.
There is no doubt that the video interviews with
school teacher and students who say they had been told
there would be a code red drill are real. What I find
disturbing is that there does not seem to be mention of
the drill in the official story. Remember the Boston
Marathon Bombing. That day the Boston newspaper
had announced that there would be a bombing drill at
the end of the race, and in videos of the event an
announcement of a drill is made at the scene just
prior to the explosion, which the announcement
says will not be a real bomb.
Other puzzling features of the Parkland FL
shooting are (1) one student says she was walking
out of the building with the suspect while
shooting was going on elsewhere in the building,
which leads her to the conclusion that there were
two shooters. Another shooter says there were
three shooters. (2) Students report that police
were in the building while shooting was
underway. (3) Apparently there is no news
interview with the Uber driver who delivered the
shooter to the school. (4) The timeline which allows
only a few minutes for the shooting is not sufficient time
for the suspect to have put on his bulletproof vest,
helmet, gasmask, go up a stairwell and shoot up 3
different floors.
What I have to say about this is the same as
what I have said about other events. Instead of
clearing up the inconsistencies and acknowledging that
a drill had been announced, the media dismisses those
who ask the obvious questions as conspiracy kooks. In
place of rational explanations we get name-
calling. Why?
What is so difficult about the authorities and
the media explaining either that the teacher and
students misunderstood and are mistaken that a
Law Animated World, 28 February 2018
72 Guns in America (Jon Rappoport)
drill had been announced, or, alternatively,
explaining why there are several instances of an
actual event occurring simultaneously with an
announced drill? A person would think that the
print and TV media would find a very interesting
subject in real events occurring simultaneously
with drills of the events, including apparently
9/11 itself, and how facts are known in advance
of the actual event.
Instead, once again we get a pre-prepared story. In
this one, timeline problems are reminiscent of the BBC
reporter standing in front of a still standing World
Trade Center Building 7 on September 11, 2001,
announcing that the unexpected collapse of the building
had occurred 20 or 30 minutes before the event.
Many Americans are so brainwashed and so
gullible that they are not capable of seeing that the
evidence completely contradicts the official stories that
they are fed by the authorities and the presstitutes. Dr.
Lorraine Day was chief of trauma surgery at San
Francisco General Hospital. She has completely
and totally discredited and disproved the official
Boston Marathon Bombing story. Sheila Casey
uses photos from the alleged bombing scene to
make it completely clear that the Boston bombing
was a staged hoax by hired crisis actors
Architects, engineers, and physicists have
conclusively proven that WTC 7 was brought down by
controlled demolition and that the twin towers did not
collapse because of airplanes and fire.
Almost all, if not all, of the carnage events have
more unanswered than answered questions. You
should ask yourself why the questions remain
unanswered if the official stories are true.
*****
Guns in America
- Jon Rappoport
The novelist William Burroughs once wrote:
"After a shooting spree, they always want to take the
guns away from the people who didn't do it. I sure as
hell wouldn't want to live in a society where the only
people allowed guns are the police and the military."
The overwhelming number of people who own guns
in America aren't killers. Anyone can, with a little
digging, discover where most of the guns crimes
Law Animated World, 28 February 2018
72
(2018) 1 LAW
are happening – and that's where law-enforcement
should focus their efforts. Trying to disarm the whole
country is not only unworkable, it's targeting the wrong
people.
A one-size-fits-all strategy is the work of bureaucrats
in a tyranny.
Vaccinate everyone – despite the fact that, by
definition, those who are vaccinated should be
automatically protected from those "germ
carriers" who aren't. …Diagnose millions of
people with a whole set of standardly defined
mental disorders, despite the fact that every
individual is unique and different.…
Educate millions and millions of
schoolchildren in public government schools by
programming them with the same set of "progressive"
values, as if they're all identical automatons in need of
mind control.
Carry out wall-to-wall surveillance on the whole
population, as if that is the only way to spot a small
number of terrorists.
Go to war against major segments of a whole
country (e.g., Afghanistan), as if that is the only way
to root out a small number of terrorists.
Instead of searching out and vigorously
prosecuting mega-corporations (with long jail
sentences for executives) who actually pollute and
poison the soil, water, and air, assume that the
business of America is business across the board, and
ignore the "side effects."
And conversely, when the bureaucracy is
rendered so thin it can't adequately screen and vet the
huge number of immigrants rushing into America,
promote a policy of open borders so everyone can come
in (because "they're all good people") - thus
reflecting the values taught to the young in
government schools. And say this is the meaning of
America. Surveying this list and adding your own
examples, you might conclude that entrenched
centralized power is actively trying to destroy the
country. … then many people would think you've gone
off the rails. And magically, those are the same people
who've been given a lifetime of indoctrination in the
policy of one-size-fits-all, because such a policy is humane,
good and serves a brighter future for all, for everyone,
for the Collective. Amen.
*****
(2017) 2 LAW Empire of Chaos (Tom Engelhardt)
Empire of Chaos
[Through the Gates of Hell]
With President Trump, Is the American
Experiment Over?
- Tom Engelhardt, February 18, 2018.
[Note: On this Presidents’ Day weekend, in honor of the
president we have, I decided to repost this old piece of
mine. I wrote it in a white heat of shock, just after learning
that Donald Trump had won the presidency. Throughout the
2016 campaign, I had always left open the possibility that The
Donald might actually take the election, that a certain slice of
heartland America, feeling its back against the economic
wall, might be ready to send what I called a “suicide bomber” into
the White House, no matter the results. Just a few weeks
before the election, however, like so many others I was won
over by the pollsters and became convinced that he would
lose. In that, as we know from Michael Wolff’s book, Fire
and Fury, I was in good company, since, with the exception
of Steve Bannon, the Trump campaign team, including the candidate
himself, were convinced that they didn’t have a chance in hell of
winning and most of them were already preparing to turn a
losing campaign into a winning hand, job offer by job
offer, deal by deal, in a world in which Hillary Clinton
would be president.
I won’t soon forget the shock of that night. I had a 103-degree
fever, the highest of my recent life, and was thinking about
heading to the emergency room as the first results started
trickling in. Maybe I was still feverish the next day when
I began writing “Empire of Chaos,” which I published at
TomDispatch on November 12, 2016, just four days into the
Age of Trump. Looking back, I suspect that feverish quality
served me well, leading me directly into the nature of his
presidency and of a world that had already been changed
in disastrous ways – or Donald Trump would never have
won. All I would say today is that sometimes a fever is exactly
what you need to see reality as it is and recognize the chaos
to come. A year and a quarter later, with everything that’s
happened, I still don’t think I’d change a word of this post
or the question with which it ends. – Tom]
{Tom already introduced to our readers}
The one thing you could say about empires is
that, at or near their height, they have always
represented a principle of order as well as domination.
So here’s the confounding thing about the American
version of empire in the years when this country was
often referred to as “the sole superpower,” when it
was putting more money into its military than the
next 10 nations combined: it’s been an empire of chaos.
Back in September 2002, Amr Moussa, then head of
the Arab League, offered a warning I’ve never
forgotten. The Bush administration’s intention to
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invade Iraq and topple its ruler, Saddam Hussein,
was already obvious. Were they to take such a step,
Moussa insisted, it would “open the gates of hell.” His
prediction turned out to be anything but hyperbole –
and those gates have never again closed.
THE WARS COME HOME
From the moment of the invasion of
Afghanistan in October 2001, in fact, everything
the U.S. military touched in these years has turned to
dust. Nations across the Greater Middle East and
Africa collapsed under the weight of American
interventions or those of its allies, and terror
movements, one grimmer than the next, spread in a
remarkably unchecked fashion. Afghanistan is now a
disaster zone; Yemen, wracked by civil war, a
brutal U.S.-backed Saudi air campaign, and
various ascendant terror groups, is essentially no
more; Iraq, at best, is a riven sectarian nation;
Syria barely exists; Libya, too, is hardly a state
these days; and Somalia is a set of fiefdoms and
terror movements. All in all, it’s quite a record for the
mightiest power on the planet, which, in a distinctly un-
imperial fashion, has been unable to impose its military
will or order of any sort on any state or even group, no
matter where it chose to act in these years. It’s
hard to think of a historical precedent for this.
Meanwhile, from the shattered lands of the empire
of chaos stream refugees by the millions, numbers not
seen since vast swaths of the globe were left in rubble at
the end of World War II. Startling percentages of
the populations of various failed and failing
states, including stunning numbers of children,
have been driven into internal exile or sent
fleeing across borders and, from Afghanistan to
North Africa to Europe, they are shaking up the
planet in unsettling ways (as their fantasy versions shook
up the election here in the U.S.).
It’s something of a cliché to say that, sooner or later,
the frontier wars of empires come home to haunt the
imperial heartland in curious ways. Certainly, such
has been the case for our wars on the peripheries.
In various forms – from the militarization of the police
to the loosing of spy drones in American skies and
of surveillance technology tested on distant battlefields
– it’s obvious that America’s post-9/11 conflicts have
returned to "the homeland," even if, most of the time,
we have paid remarkably little attention to this
phenomena.
Law Animated World, 28 February 2018
74 Empire of Chaos (Tom Engelhardt)
And that, I suspect, is the least significant way
in which our wars have been repatriated. What
Election 2016 made clear was that the empire of chaos
has not remained a phenomenon of the planet's
backlands. It’s with us in the United States, right here,
right now. And it’s come home in a fashion that
no one has yet truly tried to make sense of. Can’t
you feel the deep and spreading sense of disorder
that lay at the heart of the bizarre election
campaign that roiled this country, brought the
most extreme kinds of racism and xenophobia
back into the mainstream, and with Donald
Trump's election, may never really end? Using
the term of tradecraft that Chalmers Johnson
borrowed from the CIA and popularized, think of
this as, in some strange fashion, the ultimate in
imperial blowback.
There’s a history to be written of how such
disorder came home, of how it warped the
American system and our democratic form of
governance, of how a process that began decades ago
not in the stew of defeat or disaster but in a moment of
unparalleled imperial triumph undermined so much. If
I had to choose a date to begin that history, I think
I would start in 1979 in Afghanistan, a country that, if
you were an American but not a hippie
backpacker, you might then have had trouble
locating on a map. And if someone had told you at
the time that, over the next nearly four decades,
your country would be involved in at least a quarter-
century of wars there, you would undoubtedly have
considered him mad.
Thought of a certain way, the empire of chaos
began in a victory so stunning, so complete, so imperial
that it essentially helped drive the other superpower,
that “Evil Empire” the Soviet Union, to implode. It
began, in fact, with the desire of Jimmy Carter’s
national security adviser, Zbigniew Brzezinski, to give
the Soviets a bloody nose, or to be more precise,
a taste of America’s Vietnam experience, to trap the
Red Army in an Afghan quagmire. In that light, the
CIA would run a massive, decade-long covert
program to fund, arm, and train fundamentalist
opponents of the leftwing Afghan government in
Kabul and of the occupying Red Army. To do so,
it fatefully buddied up with two unsavory “allies”: the
Saudis, who were ready to sink their oil money
Law Animated World, 28 February 2018
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(2018) 1 LAW
into support for Afghan mujahedeen fighters of
the most extreme sort, and the Pakistani intelligence
service, the ISI, which was intent on controlling
events in that land, no matter the nature of the
cast of characters it found available.
In the fashion of Vietnam for the Americans,
Afghanistan would prove to be what Soviet leader
Mikhail Gorbachev called "the bleeding wound” for
the Russians. A decade later, the Red Army would
limp home in defeat and within two years a
hollowed-out Soviet Union, never as strong as
Washington imagined, would implode, a triumph so
stunning that the American political elite initially couldn’t
take it in. After almost half a century, the Cold War
was over; one of the two remaining “superpowers” had
left the global stage in defeat; and for the first time
since Europeans set out on wooden ships to
conquer distant parts of the globe, only a single
great power was left standing on the planet.
Given the history of those centuries past, the
dreams of Bush-Cheney & Co. about how the
U.S. would dominate the world as no power, not
even the Romans or the British, had ever done
seemed to make a certain sense. But in that
triumph of 1989 lay the seeds as well of future chaos.
To take down the Soviets, the CIA, in tandem with
the Saudis and the Pakistanis, had armed and built
up groups of extreme Islamists, who, it turned out,
had no intention of going away once the Soviets were
driven from Afghanistan. It won’t exactly shock you
if I add that, in those decisions, in that triumphant
moment, lay the genesis of the future 9/11 attacks and
in some curious fashion, even perhaps the future rise
of a presidential candidate, and now president-elect, so
bizarre that, despite the billions of words expended on
him, he remains a phenomenon beyond understanding.
As our first declinist candidate for president,
Donald J. Trump did at least express something new
and true about the nature of our country. In the
phrase that he tried to trademark in 2012 and with
which he launched his presidential campaign in
2015 - “Make America Great Again" - he caught a
deeply felt sense among millions of Americans that the
empire of chaos had indeed arrived on our shores and
that, like the Soviet Union a quarter-century ago,
the U.S. might ever so slowly be heading into an era in
which (minus him, naturally) “greatness” was a goner.
(2017) 2 LAW Empire of Chaos (Tom Engelhardt)
Imperial Overreach and the
Rise of the National Security State
In the end, those seeds, first planted in Afghan and
Pakistani soil in 1979, led to the attacks of September
11, 2001. That day was the very definition of chaos
brought to the imperial heartland, and spurred the
emergence of a new, post-Constitutional governing
structure, through the expansion of the national
security state to monumental proportions and a
staggering version of imperial overreach. On the
basis of the supposed need to keep Americans
safe from terrorism (and essentially nothing else),
the national security state would balloon into a
dominant – and dominantly funded – set of
institutions at the heart of American political life
(without which, rest assured, FBI Director James
Comey’s public interventions in an American election
would have been inconceivable). In these years, that
state-within-a-state became the unofficial fourth
branch of government, at a moment when two of
the others – Congress and the courts, or at least
the Supreme Court – were faltering.
The 9/11 attacks also unleashed the Bush
administration’s stunningly ambitious, ultimately
disastrous Global War on Terror, and over-the-top
fantasies about establishing a military-enforced Pax
Americana, first in the Middle East and then
perhaps globally. They also unleashed its wars in
Afghanistan and Iraq, the U.S. drone assassination
program across significant parts of the planet,
the building of an unprecedented global surveillance
state, the spread of a kind of secrecy so all-
encompassing that much of government activity became
unknowable to “the People,” and a kind of imperial
overreach that sent literally trillions of dollars
(often via warrior corporations) tumbling into the
abyss. All of these were chaos-creating factors.
At the same time, the basic needs of many
Americans went increasingly unattended, of those at
least who weren’t part of a Gilded Age 1% sucking
up American wealth in an extraordinary fashion. The
one-percenters then repurposed some of those
trickle-up funds for the buying and selling of
politicians, again in an atmosphere of remarkable
secrecy. (It was often impossible to know who had
given money to whom for what.) In turn, that stream
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75
of Supreme Court-approved funds changed the nature
of, and perhaps the very idea of, what an election was.
Meanwhile, parts of the heartland were being
hollowed out, while – even as the military
continued to produce trillion-dollar boondoggle
weapons systems – the country's inadequately
funded infrastructure began to crumble in a way that
once would have been inconceivable. Similarly, the
non-security-state part of the government –
Congress in particular – began to falter and
wither. [Meanwhile, one of the country’s two great
political parties launched a scorched-earth campaign
against governing representatives of the other and
against the very idea of governing in a reasonably
democratic fashion or getting much of anything done
at all. At the same time, that party shattered into
disorderly, competing factions that grew ever more
extreme and produced what is likely to become a
unique celebrity presidency of chaos.] The United
States with all its wealth and power is, of course,
hardly an Afghanistan or a Libya or a Yemen or a
Somalia. It still remains a genuinely great power, and
one with remarkable resources to wield and fall back
on. Nonetheless, the recent election offered
striking evidence that the empire of chaos had
indeed made the trip homeward. ….
Count on it to be an essential part of the
Trump presidency. Domestically, for instance, if
you thought the definition of American political
dysfunction was a Congress that would
essentially pass nothing, just wait until a fully
Republican-controlled Congress actually begins
to pass bills in 2017. Abroad, Trump's unexpected
success will only encourage the rise of right-wing
nationalist movements and the further fragmention of
this planet of increasing disorder. Meanwhile, the
American military (promised a vast further infusion of
funds by The Donald during the election campaign)
will still be trying to impose its version of order in
distant lands and, so many years later, you know
perfectly well what that will mean.
All of this should shock no one in our new
post-November 8th world. Here, however, is a
potentially shocking question that has to be asked: With
Donald Trump's election, has the American ‘experiment’
run its course?
*****
Law Animated World, 28 February 2018
76 Law Animated World {28 February 2018}
Stephen Spender Stephen Spender
ULTIMA RATIO REGUM
The guns spell money's ultimate reason
In letters of lead on the spring hillside.
But the boy lying dead under the olive trees
Was too young and too silly
To have been notable to their important eye.
He was a better target for a kiss.
When he lived, tall factory hooters never summoned him.
Nor did restaurant plate-glass doors revolve to wave him in.
His name never appeared in the papers.
The world maintained its traditional wall
Round the dead with their gold sunk deep as a well,
Whilst his life, intangible as a
Stock Exchange rumour, drifted outside.
O too lightly he threw down his cap
One day when the breeze threw petals from the trees.
The unflowering wall sprouted with guns,
Machine-gun anger quickly scythed the grasses;
Flags and leaves fell from hands and branches;
The tweed cap rotted in the nettles.
Consider his life which was valueless
In terms of employment, hotel ledgers, news files.
Consider. One bullet in ten thousand kills a man.
Ask. Was so much expenditure justified
On the death of one so young and so silly
Lying under the olive tree, O world, O death?
***
SHAPES OF DEATH
Shapes of death haunt life,
Neurosis eclipsing each in special shadow:
Unrequited love not solving
One’s need to become another’s body
Wears black invisibility:
The greed for property
Heaps a skyscraper over the breathing ribs:
The speedlines of dictators
Cut their own stalks:
From afar, we watch the best of us –
Whose adored desire was to die for the world.
Ambition is my death. That flat thin flame
I feed, that plants my shadow. This prevents love
And offers love of being loved or loving. →
*****
Owned, Printed and Published by I. Balamani, 6-3-1243/156, M.S. Makta, Opposite Raj Bhavan,
Hyderabad - 500082; Editor: I. Mallikarjuna Sharma; Ph: 23300284; E-mail: mani.bal44@gmail.com
and printed at Pragati Offset Pvt. Ltd., Red Hills, Hyderabad-500 004 {Ph: 23304835, 23380000}
Postal Reg. No. HD/1098/2017-19
THE TRULY GREAT
- Stephen Spender*
I think continually of those who were truly great.
Who, from the womb, remembered the soul’s history
Through corridors of light, where the hours are suns,
Endless and singing. Whose lovely ambition
Was that their lips, still touched with fire,
Should tell of the Spirit, clothed from head to foot in song.
And who hoarded from the Spring branches
The desires falling across their bodies like blossoms.
What is precious, is never to forget
The essential delight of the blood drawn from ageless springs
Breaking through rocks in worlds before our earth.
Never to deny its pleasure in the morning simple light
Nor its grave evening demand for love.
Never to allow gradually the traffic to smother
With noise and fog, the flowering of the spirit.
Near the snow, near the sun, in the highest fields,
See how these names are fêted by the waving grass
And by the streamers of white cloud
And whispers of wind in the listening sky.
The names of those who in their lives fought for life,
Who wore at their hearts the fire’s centre.
Born of the sun, they travelled a short while toward the sun
And left the vivid air signed with their honour.
***
SHAPES OF DEATH…
→ →The humorous self-forgetful drunkenness
↑
It hates, demands the slavish pyramids
Be built. Who can prevent
↑ His death’s industry, which when he sleeps
→
Throws up its towers? And conceals in slackness
The dreams of revolution, the birth of death?
↑
Also the swallows by autumnal instinct
Comfort us with their effortless exhaustion
↑ In great unguided flight to their complete South.
There on my fancied pyramids they lodge
→ But for delight, their whole compulsion.
↑
Not teaching me to love, but soothing my eyes;
Not saving me from death, but saving me for speech.
↑
[*Sir Stephen Harold Spender CBE (28 February 1909
- 16 July 1995); an English poet, novelist, and essayist
↑ who concentrated on themes of social injustice and the
class struggle; The God That Failed remains one of his
↑ most sensational political writings; given the GOLDEN
PEN Award in 1995.]
*****
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