Democracy without the separation of powers is unworthy of the name
The Novak Djokovic controversy continues. Because it was never about Novak Djokovic
The separation of powers? Hasn’t that got something to do with democracy?
“Sometimes the things he has done that are very positive just don’t get mentioned often enough” (Sasa Ozmo, Serb journalist).
Djokovic. You don’t need the first name to know who’s meant. He’s probably the most divisive character in international tennis since John McEnroe. He’s done much that was viewed askance, though it were done, in his own words, with good intentions. I guess, if they had been bad intentions, he’d not have told us so. He’s attracted a lot of criticism from those who question his good intentions. But we don’t know whether such criticism as is aimed at him, is so aimed with good, or with bad, intentions. Maybe Judge Kelly was a secret admirer; perhaps he just applied the law as he knows it, to the facts as presented to him.
Some things are rarely in question: the purpose of playing professional tennis is to win; he who fails to return a ball loses the point; and the best man is liable to be the one who wins. The rest is, as Nadal put it a year past in January, “circus”.
If we fib when we pray, do you think God knows we do? More to the point, do you think we know we do?
Novak Djokovic is a hero in his home country, Serbia. Not because he fought any military battle or wrote the wisest philosophies known to the Serb language. But because he plays tennis: as well as anyone, and better than most. He gave Serbs a reason to feel proud, and that’s what a local hero is – someone the people look to, who makes them feel proud. Of all the nations on this world, I think Serbia needs local heroes of that calibre every bit as much as any do.
But, Mr Djokovic was a public danger to Australia – ruled thus by its Federal court. So, he had to go home. The drug dealers, arms dealers, murderers, rapists, dangerous drivers, swindlers and fraudsters who lingered on in Australia could remain. But such dangers are not the danger that Mr Djokovic presented, for that is a strange one: by taking a stance and arguing that a prior bout of Covid-19 meant he was not a danger to public health (one of the criteria, nota bene, for obtaining an EU Covid Pass in 2021), he posed a political danger: that sympathetic Australians might be encouraged to also decline the voluntary vaccination offered to them by their state.
Let’s be clear: the danger he posed was that others in Australia might be minded to decline a voluntary vaccination offer.
The Federal Court that told Djokovic, “Go home, go directly home, do not pass the Open, do not collect 2,975,000 dollars” did not, however, affirm the judgment made by Judge Kelly in the lower court, who’d allowed Djokovic to stay. No, it affirmed a decision by the Australian Immigration Minister, Alex Hawke.
Of course, Judge Kelly could’ve been wrong. But Judge Kelly’s judgment wasn’t the be all and end all of this story, which held us all in raptures but a light year-and-a-quarter ago. Nor, indeed, was it the Australian Open, or the tantalisingly egalitarian prizes on offer. No, the be all and end all of this whole affair was Mr Alex Hawke, the immigration minister.
The prime duty of an immigration minister is to exercise oversight on a country’s policy on immigration, covering temporary stays for tourists and businesspeople and permanent stays for those who wish to settle. Now, whilst an incurable disease that poses a drastic health risk to a country’s population might well constitute, and, indeed, in this case, was held to be, a valid reason for expelling Mr Djokovic, the be all and end all of this matter, Mr Hawke’s exercise of his discretionary ministerial power. This he exercised in order to overrule a judgment handed down by a duly constituted, competent court of record. I think it’s quite right that ministers of governments should have certain discretionary powers; I think it’s probably right that they have more information and a better basis on which to base their decisions than, say, I would. But the raw judicial mechanics of Djokovic’s expulsion from Australia were a blatant case in which a court that had handed down a decision in a notorious case, but that had gone against the will of the government, was simply overruled by that government in order to force its own view of the situation: the executive overruled the judiciary.
Five hundred years ago, Thomas More was sent to the block to have his head removed from his body. He had been incarcerated a year and more previously for his refusal to sign, as an oath of allegiance, the new English law approving Henry VIII’s instatement as the head of the church in England: the Act of Settlement. He had been previously been asked to express his opinion on, and explicitly approve the King’s divorce from his wife, Catherine of Aragon. This he had refused to do, on the ground that it was contrary to his conscience.
Throughout the travels that marked the end of a brilliant life in law, divinity, literature and humanism, Thomas Moore laid his faith in the law; he was utterly convinced that the law could not force him to approve the King’s divorce. What he unfortunately failed to take into consideration was the propensity of the likes of Thomas Cromwell, when the law as it stands fails to achieve it’s willed course, to simply change the law. It was cleverly done, and in the Act of Settlement, Cromwell devised a ploy that forced More’s hand. It’s doubtful whether Cromwell actually wanted More’s death. But he got it – because, for all his shrewd judgement of the man More, Cromwell did not appreciate what a leviathan of principle opposed him, and just how firmly a man of More’s mettle can bind himself to a principle. More lost his head over an ounce of ink on a legal document that he would dismiss, post-conviction and pre-execution, as morally repugnant.
On 2 May 2023, Lord Uist, a retired former senior Scottish judge, rounded on proposals before the UK parliament to exercise executive control over the administration of justice in Scotland under the Victims, Witnesses and Justice Reform (Scotland) Bill, which tabled in April this year. He homed in on provisions that, if enacted, will make judges in Scotland in the new Sexual Offences Court subject to removal if they fail to attain certain conviction standards.
I do not want to belittle sexual offences, and have been a vocal advocate of better and more cogent investigation of them. Butconviction rates are not at the root of the crime’s commission. The urges that impel their commission lie at the root of that; and, for one, I feel they are sadly misunderstood. Rape is a crime that is performed through the sexual act, but is driven by a yearning for power. The provisions Lord Uist complains of would do nothing to drive down offending rates; and might even simply up the “power prize” brandished at sexual offenders; if judges lean too leniently on lending credence to defendants rather than victims, there is a part of that which is right and proper, because a civilised society must befriend itself with the idea that it is far better to let 100 defendants go free than risk the conviction of one who is innocent. All are properly to be accorded the benefit of the maxim innocent until proven guilty and to demand of the State that it adduce proof beyond reasonable doubt of the offence as charged. In that mix, or else we’ll fire the judge is way out of place; and unconstitutional.
From Melbourne, around the world and back to Melbourne, cries could be heard: “Djokovic lied!”, and many are the cries at the acts – alleged acts, at least, until proven – of sexual offenders. But cries in crowds do not – thank God – render court verdicts. And any jurisdiction that lends value to mob justice simply disregards justice, full stop, as a concept, and thereby does nothing to bolster its justice system. Instead, applying the law becomes like following army orders. Yes, Djokovic broke the law, and it’s maybe that it was just not right for him to take part.
Djokovic’s case is a difficult one: medically, in terms of his inaccurate declarations, and in appreciating his great disappointment at not being able to compete. But, on one score, it was wrong that he didn’t take part: his case is terribly, terribly simple: the executive overruled the judiciary because the judiciary came to the wrong conclusion and thereby lent credence to the doubts expressed on Australia’s vaccination programme, and its ultimate effectiveness.
They say that that is precisely what government is there for: to step in and take control, and take decisive, definitive decisions when decisions need decisively to be taken; and that’s what it did in this case, except, if we’re also in favour of such discretionary, if not arbitrary, powers then, surely we would be jubilant to include such powers in all and any laws, not just those concerning pandemics or even sexual offences in Scotland. Whilst it’s slowly starting to be appreciated that such arbitrary statutes do in fact govern large swathes of the Earth’s populations whether they’re written there or not, I’m almost at the point of asking Mr Zelenskyy in Ukraine to make carefully imparts to us, too, what precise form of democracy and freedom he is hoping to nurture out of the destruction of his country. Something like these?
Mr Djokovic returned to Australia a year later and carried off the silverware and the nearly three mil. But that did nothing to solve Australia’s, and a lot of other countries’, juridical dilemmas.