This post continues the theme developed in Social Cohesion or Social Conformity of the importance of the rule of law as the most important element of social cohesion and how the rule of law can be undermined by the loss of respect for, and apparent powerlessness of, our established institutions

David Harvey

As I write this, a protest camp is present outside Parliament. It has been there for 12 days and is likely to remain. It seems to be well supported in terms of those attending and in terms of the infrastructure that has developed. There are cooking facilities, recreational facilities and educational facilities for the young who are present.

It isn’t difficult to ascertain what the protest is about. It has been characterised as an anti-vax protest but the message coming through is that it is a protest against the effects of mandatory requirements for vaccines. Those who are in the catchment for those mandatory requirements are teachers and health workers, so it is no surprise that several from these professions are present.

Of course, the protesters have been demonised. Although comfortable words are spoken about the right to protest, there is condemnation for this one because it has gone too far and in some respects it may well have done.

But the anti-protest rhetoric, aligning the protesters with the ‘far right’ has become clear from such ‘progressives’ as Simon Wilson in this piece headlined Pandemic, protest, nurses and nutters and an awesome piece of rolling inferential reasoning from Thomas Coughlan in a piece entitled Parliament occupation inevitable, but end should also be where he says:

• Given the anti-mandate crowd are only anti-mandate because they’re anti-vaccine, and they’re only anti-vaccine because of conspiracy theories about its provenance and efficacy, there’s also an air of inevitability about the involvement of neo-Nazis and associated far-right conspiracy theorists and cranks with the protest.

That sort of dismissive commentary overlooks the seriousness with which many of the protesters view the situation. This attitude of dismissiveness has continued from no less a source than the advocate for kindliness – the Prime Minister – and is reflected in many of the statements from other politicians.

Another aspect of the current situation is that it has demonstrated the total powerlessness of our institutions.

Initially the police seemed ready to take action but then pulled back. In essence, this has given the protesters carte blanche to continue to develop the site and increase the semi-permanence of their presence. The theory of ‘policing by consent’ – and it can only be a theory – isn’t going to gain any traction with the protesters.

The steps taken by Mr Speaker last weekend in turning on the sprinklers and playing awful music over loudspeakers was infantile to say the least and served only to diminish any respect for his office or for the institution of Parliament.

The public looks on and what does it see? Certainly, no positive steps from our politicians who will not engage unless the protesters move on. This is reminiscent of the approach taken to hostage negotiations or a ‘lay down your arms before we talk about a ceasefire’ approach. The Prime Minister dismisses the protest as anti-vax (when clearly it is not only that) and was conspicuous by her absence when Mr Speaker was playing his part.

Other politicians (apart from David Seymour) seem unwilling to engage and the reasons are opaque. Once again, leadership seems to be lacking and our governing institutions suffering from powerlessness, toothlessness and an apparent unwillingness to do anything.

What is extraordinary is that the politicians and those in government are not our masters but our servants.

We look to the government especially to maintain the rule of law – another institution that seems to be in difficulty – since it seems that the rule of law is engaged on two fronts: the question of how the law deals with a protest that has aspects of unlawfulness; and how the courts might continue to function when the protesters by their actions make the administration of justice almost impossible.

No less a person than the Chief Justice has commented on the fact that a jury trial in the High Court at Wellington had to be cancelled.

In addition to the issue of the powerlessness of our institutions or their apparent unwillingness to act is an aspect of constitutional theory expressed by Thomas Jefferson in the Declaration of Independence

Governments are instituted among Men, deriving their just powers from the consent of the governed.

As things stand, I wonder if the consent of the governed is as willing as it once was. Do people consent to being governed by institutions that seem powerless or unwilling to maintain the rule of law?

Certainly, the protesters, anarchic as they may appear, are in fact quite well organised. It seems that the consent consensus they have is a little more resilient than that of the government. But I don’t think the majority of New Zealanders would consent to that form of regime.

Or are we headed into something else? William Butler Yeats, the Irish mystic poet writing after the horrors of World War I and the Spanish Flu pandemic, wrote in Second Coming:

Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere
The ceremony of innocence is drowned;
The best lack all conviction, while the worst
Are full of passionate intensity.

It seems that his words may aptly describe our present situation.

David Harvey is a retired District Court judge