Awzar Thi blogs on the disqualifying of Samak by the Constitution Court:
This is precisely the type of case brought against Samak, one in which the court’s responsibility was reduced to the narrowest questions of fact, cleaved off from the bigger setting. Thus legality could be applied and rationality abandoned. The court’s verdict could be justified on scrupulous legal grounds, just as were those of the Weimar and Nazi eras, but in every other respect would be absurd.
/>The sorts of questions that the September 9 judgment provokes in the minds of thinking people are not about the differences between an employee and a business partner for the purposes of article 267 in the constitution, but rather, about what sort of a legal system is capable of removing a prime minister for cooking on television but is unable to do anything about army generals who tear up the supreme law, sack top courts and siphon off billions for their own private projects.
/>BP: I still think it was not a good decision to expand the definition of an employee and one that should have consequences for a judge and maybe many more – I bet you the Constitution Court judge, if the facts are true, thought he was not in breach of the law. We will see how many believers of the “spirit of the law” there are now.* The “spirt of the law” can already be flexible where necessary.
/>On the argument about the rule of law and how it can be misused, Dyzenhaus wrote a book about this. Here is the blurb from Amazon:
The wicked legal system, one whose laws have been made the instrument of a repugnant moral ideology, has played an important part in recent jurisprudential debate. This factor seems clearly to support the argument of legal positivists, who insist on a distinction between law and morality, and to be an insurmountable obstacle to critics of positivism, who reject that distinction. In evaluating this debate, Hard Cases in Wicked Legal Systems provides a detailed study of judicial interpretations of the apartheid laws of South Africa and a brief study of recent English Judicial decisions, mainly on statutes and executive decisions dealing with matters of state security. Dyzenhaus’ study is highlighted by the surprising conclusion that positivism does not produce healthy legal practice. This penetrating study will be of particular interest to jurists and legal philosophers, political theorists, and administrative and constitutional lawyers.
/>BP: Basically, you can get the law to do anything you want. The greatest problem though is contempt of court where not only can the judiciary interpet the laws anyway they want, you can’t criticise them for doing so – see here and here amongst others.
/>*Without hashing out a long theoritical argument which could go on for pages, I am a letter of the law person. Employee has a widely-known definition in law and is used elsewhere. If the drafters really wanted to include independent contractors they should have written this in and everyone would have been clear what it meant. Know if the drafters used another term which was open to interpretation and was not previously defined and one had to choose between equally competing definitions then applying normal rules of statutory/constituional interpretation, I don’t have a problem with looking at the spirit of the law to guide them.