Andrew Geddis: Why Doonegate isn't Watergate

Links have been drawn between Prime Minister Helen Clark's dealings with the Sunday Star-Times over former Police Commissioner Peter Doone and the Watergate scandal that enveloped Richard Nixon.

The National Party, quite predictably, has begun referring to the matter as Doonegate.

One angle of comparison focuses on the Sunday Star-Times' preparedness to reveal Helen Clark as a source for its original stories. This move is contrasted with the Washington Post's refusal to tell the world the identity of its Deep Throat source.

Those involved in the media are best placed to comment on the ethics of this particular matter.

However, a second comparison relates to Helen Clark's decision to give the Sunday Star-Times information now under Cabinet consideration.

When charged in Parliament that she had leaked confidential material, Helen Clark said: "It is a matter of judgment for the Prime Minister how I use information from official reports. By definition I cannot leak."

The leaders of the Act and National parties subsequently sought to equate her words with President Nixon's claim regarding the break-in and bugging of the Watergate Hotel: "When the President does it, that means it is not illegal."

The Opposition's political aims are obvious. They want to tar the Prime Minister with the same reputation for arrogance and disrespect for the law that became President Nixon's unfortunate legacy.

But they are drawing something of a long bow.

The actions of these two public figures are of a quite different character.

In President Nixon's case, the Watergate burglars' actions were prima facie illegal. Breaking into the Democratic Party's campaign headquarters was as much a crime as is breaking into your neighbour's house. What President Nixon claimed, therefore, was the right to make an otherwise unlawful act lawful purely by virtue of his position.

Such a claim poses a serious threat to the doctrine of the rule of law - the idea that all members of society, no matter how important, should be subject to the same legal rules as everyone else.

Without this doctrine, we face the prospect of unconstrained and arbitrary government power. And over the years we have seen enough abuse of such power to know that this is a chilling prospect.

It is the very doctrine of the rule of law that allows Helen Clark to be sued for defamation. Her position as Prime Minister gives her no protection if she did, in fact, defame Mr Doone to the Sunday Star-Times.

But aside from the question of defamation, no law was breached when the Prime Minister revealed the information about Peter Doone.

At very most, it went against the Cabinet Office manual's injunction that discussion at Cabinet and Cabinet committee meetings is informal and confidential.

And we must be clear exactly what this manual is. It is a handbook of advice and practice for the Cabinet as a body.

The rules in it are a mix of the general expectations that each member has of one another, and a statement of the constitutional conventions that the members of the executive branch ought to follow.

Therefore, the status of the manual's rules in any given case will depend on the rule at issue, and the present situation.

The reason for a rule that information that is under Cabinet discussion is confidential is to stop members of Cabinet trying to win support for their individual views through well-timed leaks.

Because the public dislikes governments which fight among themselves, it makes sense for Cabinet members to agree in advance that their dealings will be kept from the public eye until a common position can be reached.

However, Helen Clark is the leader of the Government and chairwoman of Cabinet (or "the Boss", as John Tamihere likes to call her).

As such, if she chooses to make public matters before Cabinet, that is her prerogative.

Only her Cabinet colleagues could complain that she, as leader, is acting differently from how they are supposed to act.

There is one aspect of this matter which is of more public concern.

The Opposition has claimed that Helen Clark used her briefings of the Sunday Star-Times to so undermine Peter Doone's public image that his resignation became inevitable.

If the Prime Minister actually did use the media to oust Mr Doone that would be an outrage.

But it is more arguable that his position had already become untenable and that all Helen Clark did was keep the media abreast of Cabinet's thinking on the matter.

It may be that the truth of the matter never becomes fully clear. But the controversy may provide a salutary lesson to decision-makers that it is better to wait until a final decision has been made before briefing the press on a particular matter.

In the end, the crucial distinction between the Prime Minister's claim to Parliament and that of President Nixon is that the Prime Minister is right, while President Nixon was wrong.

What the Prime Minister does with official information simply is a matter for her judgment alone. Whether the electorate approves of that judgment is, of course, an entirely different matter.

* Andrew Geddis is a senior lecturer in law at Otago University.