Phillip Smith: Hair for all

The recent High court decision that prison officials acted wrongly in taking Phillip Smith's hairpiece from him has created public outrage against him and at times Justice Wylie. That outrage is misguided and misses the point entirely. The Judge championed fairness and due process for all, which is yet another example of justice for the people.

The Judge in deciding this case has upheld the very fabric of what it means to be a citizen - with all the rights and responsibilities that attach to each and everyone of us (regardless of our residential situation). Decisions such as this, form part of the fabric of a civilized and fair society. In this instance, the freedom of expression of one of our citizens, that the Corrections Department interfered with, has been properly rectified.

In a democracy governed by the rule of law, maintaining equality before the law is paramount. Equality before the law means no one, including government agencies, such as the Corrections Department, is above the law. 

The rule of law exists to protect fundamental rights and everyone’s individual freedom, including those of minority groups and prisoners to ensure that justice is accessible to all – be they perceived as weird or wonderful, good or bad.

Equality before the law means that Phillip Smith was entitled to freedom of expression - that is the wearing of a hairpiece. This right is guaranteed by Parliament and means that prison officials must respect his right unless they can demonstratively justify the need to limit it. 

The Courts and the Judges that preside in those courts have an important responsibility in upholding the rule of law and ensuring the observance of human rights. There can never be a situation where officials can “cherry pick” who is deserving or undeserving of equality. Never. 

The alternative to the rule of law is a lawless society devoid of democracy. Societies without the rule of law become loose but not free. Current examples of societies that have eschewed the rule of law and suffered the consequences of doing so can be seen in Syria, Pakistan and certain African States. We can see in those countries the dark splendour of officials making arbitrary decisions about who is worthy of rights and who is not.

Strangely and unfortunately, civics is not taught in New Zealand schools. The concept of the rule of law for many of us kiwis can be difficult to comprehend (unless you have studied at politics or law at tertiary level) – or have been on the receiving end of unfair and arbitrary decision making by enforcement agencies – such as the Police, IRD or Corrections Department.

If we do not really understand what is meant by independent courts, or if we lose trust in them, measures that undermine the rule of law can begin to gain support. Simplistic and unfounded criticisms of the administration of justice can encourage acceptance of steps to limit the role of the courts.

The rule of law is not a luxury, it’s a necessity. Cases like this highlight the manifestation of our legal system as it strives to deliver fairness, justice and equality