No Second Term For "Efficient Totalitarians"

George Orwell's Chilling Image: "If you want a picture of the future, imagine a boot stamping on a human face— forever." With his latest legislative assault on our civil liberties, the Minister of Justice, Simon Power, has not only pulled the boot onto his foot, he's lacing it up.

A SECOND TERM for National? Not if we’re serious about protecting our civil liberties.

On Monday, 15 November 2010, the Justice Minister, Simon Power, secured Cabinet approval for the introduction of the Criminal Procedure (Reform and Modernisation) Bill – his 526-page "reform" of the way the State treats New Zealanders accused of a criminal offence.

If that last sentence jars a little in your ears, it’s because the State generally prefers to describe the citizen’s experience of criminal prosecution as "The Justice System".

But "Justice" is the outcome we all hope the process will deliver. The process itself is an altogether different phenomenon. And, as anyone who has ever been arrested and brought to trial will tell you, it is far from pleasant.

The first thing that strikes you upon being arrested is the extraordinary disparity, in both power and resources, between you, the citizen, and the State agencies into whose hands you have fallen.

And those "hands" are anything but metaphorical. Police officers really do lay hands on you. You’re tossed into a malodorous concrete cell, a steel door slams in your face, and you’re "held in custody" until such time as they, or a judge, decide to let you go.

No one who’s ever suffered this deprivation of personal liberty ever forgets it. To say it inspires something close to pure panic seriously understates the experience of being locked up. Some people simply cannot endure it – as the grim tally of holding-cell suicides attests.

And have you ever wondered why they call what happens next a "trial"?

When you, "the accused", enter a courtroom the first thing that strikes you is how many people there are NOT on your side.

There are the Police officers, of course, the ones responsible for your arrest and detention. There’s the Crown Prosecutor – surrounded by a team of thin-lipped lawyers and clerks. Assisting these formidable-looking personages is another team of austere court officials. And presiding over them all is the Judge – another lawyer who, prior to being "elevated to the bench" by a bunch of politicians, was probably also a Crown Prosecutor.

And what have you, "the accused", got? Who’s on your side?

Strange as it may seem, the most important thing you’ve got on your side is history: the long history of ordinary people’s struggle against the overwhelming power of the State. Hundreds of years of subjects and citizens imposing upon the agencies of Crown and State a set of rules designed to protect all those unfortunate enough to fall into their hands.

Rules that make it possible, at least some of the time, for the outcome of these grotesquely unequal struggles between ordinary people and the State to be worthy of the name "justice".

Like the rule that the accused must be considered innocent until the State is able to prove him guilty. Or the rule that no accused person can be forced to incriminate, or testify against, himself. Or the rule that the State must disclose to the accused all the evidence which it claims to have against him. Or the rule which says that the accused must be permitted to confront his accusers. Or the rule that says he is entitled to professional legal counsel.

Or the most ancient and important rule of all: the rule which says the accused is entitled to be judged by a jury of his peers.

Because if anyone is on the accused’s side in a court of law it’s the twelve ordinary people sitting in the jury box. The twelve ordinary people the State is required to convince "beyond reasonable doubt" that the accused is guilty.

The twelve ordinary people which Simon Power, in the name of efficiency, is proposing to remove from the courtroom for all but the most serious crimes.

Mr Power is also proposing to dilute many of the hard-won protections against arbitrary state power described above.

Small wonder that Dunedin lawyer and Vice-President of the New Zealand Law Society, Anne Stevens, told the Otago Daily Times that the Criminal Procedure (Reform and Modernisation) Bill, introduced to Parliament on Monday, sets up the "efficient regime totalitarians dream about".

Re-elect a regime of efficient totalitarians?

Not if the Criminal Procedure (Reform and Modernisation) Bill goes through unamended.

Not in the thousand years it took us to win our rights and freedoms.

Biographical Note: During the 1981 Springbok Tour, Chris Trotter was arrested, charged, photographed, fingerprinted, held in a cell for six hours, released on bail, eventually brought to trial and triumphantly acquitted of the heinous crime of "Obstructing a Footpath".

This essay was originally published in The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Evening Star of Friday, 19 November 2010.