The compensation decision must come shortly. It is astonishing that the government has been able to sit on the decision since September when the Canadian judge delivered his report.
I predict an announcement after Christmas that there will be no compensation, or that it will be confined to some nominal element. The Minister will be damned by the disappointed side, whatever she announces.
Astonishingly John Key is reported today as I read it confirming speculation that:
1) the judge recommended compensation (confirmed by inference);
2) the Minister of Justice is opposed to paying; and
3) the decision is unlikely to be released before Christmas.
Announcement after Christmas will mean that it is old news by the time eveyone is back at work. Bain supporters won't get a critical mass of the knee-jerk commentators on their side, because they are at the beach. Ordinarily, even if they agree with the decision, they would have a feast over a government commissioning and funding an independent outside report to duck political responsibility, then dismissing it.
I have no view on whether compensation is fair. I honour Joe Karam for his dedication, whatever the truth of the matter. But I think the Minister will be strengthening our "constitution" if she does refuse to go along with a recommendation. Decisions on compensation for wrongful conviction and exercise of the prerogative of mercy should allow for sentiment to prevail. By their nature they will leave intense disappointment whichever way they go. The law often cannot give an answer with the certainty that it should have, to prevent floodgates opening, given how often there is uncertainty.
It is proper that such decisions be rare, and that the responsibility be taken by someone who must answer to the people directly. The recognised uncertainty of politics and the conscience of the politician is a shock absorber for the system. We cannot leave such powers for the conscience of judges, or administrative bodies, because we do not want them to act on sentiment or prejudgement, or opnions as to who will be the most upset side. But politics is largely about reconciling the irreconcilable. An elected politician can pardon and be merciful without the result becoming a precedent straitjacket.
In other words, the Mininster may show in this case that the compensation discretion remains just that. Despite a judges inquiry, the advice of the judge has not become cemented by custom into a de facto judicial decision. Nobody will acquire a right to compensation which in a future case might outrage the community.
It was odd for Minister Simon Power to get a Canadian judge for the job. Canada's Supreme Court is known more for political correctness than intellectual rigour. It may be quite unfair to tar the judge concerned with the general sogginess of that Court, but lawyer gossip predicted trouble of this kind.