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.

Brutal Realities

Just who is brutalising who? Justice Minister Simon Power appears willing to do violence to his own (surprisingly liberal) principles rather than forswear the support of the Sensible Sentencing Trust and its right-wing authoritarian advisers.

"RE-BRUTALISATION" – It’s a word you’ll be hearing again and again over the next few months.

The literal meaning of "re-brutalisation" is simple and straightforward. Someone is re-brutalised if they are repeatedly subjected to brutal treatment.

If an Islamic leader fell victim of one of the CIA’s "Special Renditions", for example, and was spirited away to Morocco, "waterboarded" and then released, only to be abducted, waterboarded and released all over again; then I think it would be fair to say that he’d experienced "re-brutalisation".

Because "brutal" is a very strong word – meaning "savagely or coarsely cruel"; "harsh"; and "merciless".

To discover that New Zealand children were being repeatedly subjected to savage, coarse, cruel, harsh and merciless treatment at the hands of our judicial officers would, therefore, be utterly shocking, unbelievable, and – if true – cause for the utmost concern.

But this is precisely what the Minister of Justice, Simon Power, is accusing judicial officers of doing to New Zealand children. According to Mr Power, the nation’s judges are sitting back and allowing taxpayer-funded defence lawyers to savagely, coarsely, cruelly, harshly and mercilessly "re-brutalise" child victims.

I must say that I was deeply shocked to learn that this sort of behaviour was being allowed in our courts. Media reports over the past twenty or so years had conveyed an entirely different picture of how New Zealand’s courts were obtaining and testing the testimony of children – especially those involved in cases of alleged child abuse.

I’d read about testimony being given by video-link so that children would not be required to physically confront their alleged abusers. I’d heard about social workers and psychologists being present to ensure that the child witnesses were not placed under undue pressure during cross-examination. Indeed, the clear impression I’d received from all of these media reports was that in this country our judicial system did everything within its power to make sure that child witnesses were treated kindly, delicately, compassionately, gently and sympathetically.

Apparently, I was wrong. Apparently, the same news media that has consistently misinformed me concerning the measures taken to ensure that child witnesses are not harmed by our legal processes, has also systematically suppressed the fact that, year after year, child witnesses were being savagely cross-examined by merciless defence lawyers, while judges and prosecutors looked on impassively – lifting not one finger to prevent these unfortunate youngsters’ "re-brutalisation".

All nonsense, of course. No such "re-brutalisation" has occurred, or is occurring, in New Zealand’s courtrooms. New Zealand does, indeed, enjoy a very good reputation for the way it handles the testimony of children.

So, why is the Minister of Justice using such extravagant and prejudicial language to convince us that our courtrooms have been transformed into veritable torture-chambers?

The answer to that question is, I’m afraid, as sinister as it is alarming.

Politically-speaking, the Minister has determined that there is more to be gained by aligning himself with the so-called "Victim’s Rights" movement, than there is by defending the core principles of Anglo-American jurisprudence.

The movement behind this politicisation of victimhood has a very specific and very sinister purpose: to roll-back the rights of the citizen, and reinforce what they see as the dangerously weakened powers of the State. Arising in the mid-1970s as a reaction to what many persons in authority around the world regarded as "an excess of democracy", this movement’s ultimate purpose is to stuff the genie of "permissiveness" back inside its bottle.

Were it to announce these purposes openly and honestly, however, such a profoundly authoritarian project would almost certainly be rejected by the electorate. But, when it masks its ultimate objectives behind the carefully manufactured perception that our courts have become places where criminals, awash with rights and flush with taxpayers’ cash, are outrageously protected by weak judges and venal defence lawyers; and where the victims of crime, their rights denied and their voices stifled, are callously "re-brutalised" over and over again; then the clamour for reducing the rights of accused citizens and brutally punishing convicted criminals becomes politically irresistible.

In the 2008 election campaign, the political scientist Jack Vowles noted that: "Hard-line law and order policies seem to have provided the strongest substantive National Party appeal, despite Labour’s considerable concessions to that point of view since 1999."

As a person, Mr Power is an intelligent, compassionate and surprisingly liberal man. As a politician, however, he can’t afford to become the National Minister who turned his back on the suite of policies which persuaded more former Labour voters to switch sides than any other. That is not the sort of legacy someone hoping to succeed John Key as National’s leader wants to have hanging around his neck. Which is why he’s prepared to ally himself with some very cruel, very coarse and very savage ideological beasts.

If anyone’s been "brutalised", it’s the Minister.

This essay was originally published in The Press of Tuesday, 31st August 2010.

Scapegoating The Young For Alcohol's Harm

Have you all got a note from your parents? Eighteen to twenty-year-old New Zealanders are being scapegoated for their society's problems with alcohol - allowing the real culprits to escape the sort of regulation that would make a real difference.

THROUGHOUT THE ENTIRE DEBATE on "What should we do about our drinking problem?" one very important issue has been consistently overlooked.

The constitutional, political and moral objections to "down-sizing" the rights of 18 to 20-year-olds.

Though the Age of Majority Act (1970) sets 20 years as the age at which a New Zealander acquires all the rights and responsibilities of citizenship, over the course of the past four decades Parliament has effectively lowered the Age of Majority to 18 years.

Eighteen and nineteen-year-olds have the right to vote in local and general elections, perform jury service, join the armed forces, make a will, sign a contract, and purchase alcohol. About the only important thing 18 and 19-year-olds can’t do is marry each other without parental consent.

When it comes to the other rights, responsibilities and duties of citizenship, however, 18 and 19-year-old New Zealanders are legally recognised as responsible adults.

This raises a couple of very serious question. Having admitted 18 and 19-year-olds to the ranks of adult New Zealanders, is it constitutionally, politically and morally justifiable to cast them back into the ranks of non-adults when it comes to purchasing alcohol?

How can prohibiting their participation in a social activity in which all other New Zealand adults are free to engage without legal sanction possibly be right?

I would argue that it is neither right nor justifiable. Once specific political and social rights (like the right to vote or the right to purchase alcohol) have been given to a group of citizens they cannot be taken back without placing the rights of every other citizen in jeopardy.

Were the White Americans living in the Deep South justified in stripping their Black neighbours of their civil and political rights in the latter half of the 19th Century? Did the Nazi Government of Germany have the right to strip German Jews of their citizenship in the 1930s?

Both of these cases involved the persecution of a politically friendless minority whose morals, capabilities and behaviour were openly despised and derided by the majority.

It is surely no accident that the alleged failings of young people loom large in the alcohol debate, or that an aggressive rolling-back of their rights is being advanced as the best means of solving the problem. They, too, constitute a vulnerable minority. They, too, have the dubious historical distinction of being their society’s whipping-boy. They, too, have enormous difficulty in mounting an audible defence.

Never mind the glaring absence of hard statistical evidence suggesting that young people are disproportionately responsible for the problems caused by alcohol. And let’s just forget the fact that alcoholism and the damage it causes New Zealand society is a phenomenon more commonly associated with people in their 30s, 40s and 50s.

If the Justice Minister, Simon Power, had been guided by the facts he would have been obliged to fashion an alcohol reform package that struck not at the young and the vulnerable but at the rich and the powerful.

Had Mr Power really wanted to "reduce harm" he’d have gone after the Booze Barons, who market "Ready-to-Drink" lolly-water directly to young women in their late teens and early 20s; the advertisers, whose deadly equation "alcohol = fun" leads so many youngsters astray; and the supermarket owners, whose heavily discounted bottles of plonk are used to "loss-lead" their shoppers into the more profitable aisles.

Raising the excise duty, banning alcohol advertising, restricting the number of outlets and lowering the permissible blood-alcohol level for drivers would have produced an immediate and dramatic reduction in the harm alcohol causes.

But a package which stripped businesses of their economic power would only embroil the National-led Government in a politically counter-productive struggle with its own supporters. As a solution, turning young people into scapegoats has so much more to recommend it.

After all, blacks stay black, and Jews remain Jews, but young people eventually turn into old people who, in their turn, can be persuaded to project all the failings of their own generation on to the next.

That’s why making young people the focus of the alcohol debate is so important. Like all campaigns to restrict the rights of a vulnerable minority, its purpose is to hide the much greater harm done to all of us by an invulnerable minority.

The people who profit by it.

This essay was originally published in The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Evening Star on Friday, 27 August 2010.

Losing Something Precious

The Rights and Liberties of Freeborn Men: New Zealanders are on the verge of surrendering legal rights that date all the way back to King John's issuing of the Magna Carta Libertatum (The Great Charter of Freedoms) in 1215.

AMIDST THE CACOPHONY of angry voices calling for tougher penalties and diminished rights for criminals, something very precious is being lost. Like most precious things, it took many years to create, and the price was very high. Losing this precious thing is likely to prove a mighty tragedy – the full dimensions of which will only become apparent when it’s gone.

This precious thing is, of course, the protective shield of legal rights and privileges which safeguard the citizen against the massive, potentially obliterating, power of the State. It is a shield which took many centuries to fashion, and was purchased at the cost of countless lives.

Of what is this shield composed? Nothing less than the ancient rights and privileges of the subject/citizen – stretching back to Magna Carta and beyond.

The right to be presumed innocent until proven guilty. The right of habeas corpus (no detention without trial). The right to swift, open and dispassionate justice. The right to face one’s accusers. The right to know the nature and full-extent of the charges brought against one. The right to prepare and present an adequate defence. The right to silence. The right to be judged by a jury of one’s peers. The right to have the State’s case proved beyond reasonable doubt. The right to a unanimous verdict. The right to protection against "double jeopardy" (being tried repeatedly for the same offence).

The State hates this shield: as it hates everything which limits and constrains its power; and will seize upon the slightest opportunity to abridge, weaken, or eliminate entirely the rights wrenched from its grasp by the people.

For example, there’s the consistent failure of successive governments to adequately fund the courts. This has required those accused of wrongdoing, and its victims, to wait longer and longer for their cases to be heard. As the old saying goes: Justice delayed is justice denied.

And only last year, Parliament overturned the long-standing legal prohibition against double jeopardy. The right to a unanimous verdict, an ancient and extraordinarily important safeguard against prejudice and pressure, disappeared at the same time.

And just this week, the Minister of Justice, Simon Power, announced plans for a further round of legal "reforms" – changes which could strip away even more of our rights.

At risk is the presumption of innocence (through tougher bail laws) the right to silence (by re-writing the rules of evidence) the right to a full and adequate defence (by cutting back on legal aid) the right to face one’s accusers (through the introduction of courtroom "teleconferencing") and the right to be judged by a jury of one’s peers (by introducing the European system of "inquisitorial" justice for rape cases).

It is ironic that these "reforms" are being contemplated by a National Party cabinet minister. As New Zealand’s leading conservative party, founded in 1936 to restrain state power and protect the rights of the individual citizen, National should be the most avid defender of the ancient rights and privileges of the people. Sadly, on matters of law and order, National long ago surrendered to the irrational populism of the Mob.

There is irony, too, in the Mob’s determination to throw away the legal rights their ancestors fought so hard to secure. After all, those who subscribe to the "eye-for-an-eye, tooth-for-a-tooth" philosophy of the Sensible Sentencing Trust, are the very same people who loudly condemned the depredations of the "Nanny State", and voted overwhelmingly for the right to raise their children as they saw fit – free from government interference.

So thoroughly have criminals been demonised by the Right that a huge number of otherwise sensible and compassionate people are no longer able to see that, for all but a few moments of life-transformingly bad decision-making, most lawbreakers are indistinguishable from themselves. They also seem to have forgotten that policemen, prosecutors – even judges – frequently get things wrong.

With a citizen’s liberty at stake, isn't it entirely reasonable to require the State to establish its right to lock him up "beyond reasonable doubt"?

Those who talk glibly about the pendulum having swung too far in favour of the rights of the accused, would sing a very different tune were they to find themselves suddenly – and unjustly – handcuffed in the dock.

Better to let ten guilty men walk free than imprison an innocent man.

This essay was originally published in The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Evening Star of Friday, 9 October 2009.