Tuesday 30 October 2012

Because They Can

Beyond The Law: A mother embraces all that remains of her son - murdered by the Serbs at Sebrinecia. When the possibility of being held to account disappears, so too do all the "normal" and "decent" restraints of civilised living. If the State breaks the law, then there is no law - and no one is safe.
THEY HAD LIVED next door to one another for years. Their children went to the same schools. The men worked in the same fields. Everyone drank the same water, breathed the same air.
So what caused one neighbour to fall upon the other so savagely? Shoot to death the father and the sons in their own garden? Rape the mother and daughter in their own kitchen?
The world watched, horrified, as the people of what had been Yugoslavia tore their country, and themselves, to pieces in the early 1990s.
The bleak lesson of those dreadful times is clear. When there is no possibility of being held to account for their actions, perfectly “normal” and “decent” people become willing participants in the most horrendous crimes.
Because they can.
Because no one will punish them for doing so.
Thinking about such things makes us uncomfortable. It makes us question the meaning of “normal” and “decent”. It makes us wonder if those who speak about “original sin” might have a point. And if the veneer of civilisation might be no more substantial than a bloodstain – and just as easily wiped away.
It should make us value all the more the protocols of law and justice. But most of all it should make us acutely sensitive to the words and actions of those in authority over us. Because it is from these figures that the cues invariably come. Stark or subtle, it is their messages that prime us, alert us, incite us and reassure us that from some groups in society the protection of the law has been withdrawn; that they are now fair game; we can do what we like to them. No one will come to punish us. No one will be held to account.
And so, to Justice Simon France, we all owe a huge debt of gratitude. This week he placed himself athwart the road that leads to the death of accountability, social safety and personal liberty and said “No further!”
The New Zealand Police, or at least the Organised Financial Crime Authority of New Zealand (Ofcanz), had decided that for one particular group of citizens, in this case members of the Red Devils Motorcycle Club, the law could be broken with impunity. To convict men they’d already adjudged guilty and considered enemies of all “normal” and “decent” people, Ofcanz officers believed it right and proper that the Executive and Judicial arms of the state should join forces. That secretly, and in conscious manipulation of the law, they should help a Police undercover agent bring these enemies of the people (organised criminals! drug-dealers!) to “justice”.
When I read about Justice France’s decision to stay the prosecution of the Red Devils Motorcycle Club, and was then forced to listen to the outraged response of the Police Association’s Greg O’Connor, I was reminded of the line spoken by the eponymous hero of the hit 1971 counter-culture movie, Billy Jack.
Warned that the blatantly illegal actions of a wealthy rancher were sanctioned by the presence of a corrupt local deputy sheriff, Billy Jack says: “When policemen break the law, then there isn’t any law – just a struggle for survival.”
Why couldn’t Greg O’Connor have said that? Why couldn’t he have stood up for every honest police officer? Why wasn’t he the first to say that such behaviour was unacceptable and that those responsible must be called to account?
More importantly, why wasn’t the Minister of Police, Anne Tolley, willing to say it? Why wasn’t the Prime Minister?
Our political leaders are supposed to be the guardians of our rights and liberties. They are supposed to understand and uphold the doctrine of the separation of powers. They are supposed to have sufficient grasp of basic ethical principles to know that “the end justifies the means” is always the first, irrevocable step down the road to perdition.
That they appear not to understand these responsibilities to their fellow citizens should make us feel uncomfortable – very uncomfortable. Their public statements – which can hardly be interpreted as anything other than a vote of confidence in the behaviour of the police officers whose actions were so roundly condemned by a senior member of the judiciary – are equally discomforting.
Because they are cues; not-so-subtle hints that this is the direction in which we can expect government policy to go. And in no time at all columnists and commentators of like mind were picking-up on their cues; expanding and amplifying their hints.
Who are these judges? Why aren’t they lending the Police a hand, instead of protecting these criminals? Who cares about the rights of these “terrorists”? What about the rights of the “good people of Nelson”?
No doubt the “good people” of all those Yugoslavian villages heard their leaders asking very similar questions.
Right before they butchered their neighbours.
This essay was originally published in The Press of Tuesday, 30 October 2012.


gregster said...

In the context of the NZ police action, and the lack of comment from the police minister or prime minister, I strongly agree with you.

Than said...

Comparing the actions of the NZ Police to atrocities in Yugoslavia is hyperbole in extremely bad taste. I’m disappointed Chris, your posts are usually a lot more reasoned and worthwhile to read.

The evidence gathered by the undercover officer should have been ruled inadmissible, absolutely. But most of the charges involved still had sufficient evidence they would probably have resulted in a conviction. For a Judge to just wave his hand and throw all related charges out... it absolutely reeks of a petty power play between the judiciary and police. Judge Simon Frances should be ashamed of himself. He has decided the pride and prestige of the courts (and the ability of Judges to put the police “in their place”) is more important than the law, more important than the safety of the people.

Chris Trotter said...

No, Than, the Police decided they could act outside the Law, and Justice France reminded them - and us - that they can't.

Nor is it hyperbole to indicate the logical end point of the lack of political condemnation of the Police's illegal actions. That is precisely how the slide into butchery begins - with political cover.

First the politicians place unwanted groups outside the Law's protection, then they encourage their persecution by letting their neighbours know that there will be no retribution.

Remove the credible threat of retribution and people become capable of anything.

Yugoslavs growing up in the 1970s would not have believed it was possible for neighbour to butcher neighbour.

They were wrong.

Than said...

Justice France reminded the police they cannot act outside the law. And at the same time he reminded 21 criminals they can.

You have a quote you've mentioned a couple of times - "When policemen break the law, then there isn't any law - just a fight for survival." It is a good quote and an idea that must be remembered. But I will suggest an idea to you in turn - "What happens when judges break the law?" Because surely the law relies just as much on judges as it does police?

That is essentially what has happened here. Justice France didn't just apply the law to keep the police within their bounds. He went further. He decided to use his discretion to dismiss criminal charges that would probably have resulted in a conviction. He arbitrarily decided to ignore the law as a means to punish the police.

The police breaking the law is worrying. But Judges breaking the law should be equally worrying.

Chris Trotter said...

No, Than, Justice France ordered a stay of proceedings because they had been laid, in part, on the basis of a fraudulent manipulation of the legal process involving illegal activity on the part of the Police.

Your entire argument appears to be based on the notion that the Police are an arm of the Justice System and that they possess legal powers equivalent to those of judges.

This is not the case.

It is the role of the Police to preserve the Queen's Peace and to assist the judicial arm of the state in uncovering and presenting evidence of illegal activity.

The latter function is, quite rightly, very tightly controlled. Any and all evidence improperly attained will, almost invariably, be ruled inadmissable by the courts.

You also appear to have completely set aside the presumption of innocence. The members of the Red Devils Motorcycle Club were accused of wrongdoing by the Police, they were by no means guilty of same. Only the due process of law can determine guilt.

You clearly consider a Police accusation of criminal behaviour to be the same as a judicial verdict.

Not only is this wrong - it is also extremely dangerous.

Anonymous said...

"Than" and others, Geddis over on Pundit has got it locked. Love the post, Chris.

Lew said...


I agree with this, and it is an important shift from your previous position of defending politicians breaking the law in service of the greater good, and your more recent defence of these very same New Zealand Police breaking the law in the Urewera case.

Impunity is dangerous in a civil society. I welcome your change of heart on the subject.


Chris Trotter said...

A chocolate fish to you, Lew, for spotting the inconsistency.

One of the more radical definitions of sovereignty, however, is: "He who decides the exception."

Lew said...

Chris, it seems I read you wrong.

While your post is superficially a ringing endorsement of the Rule of Law, if we cut away the verbiage you're really just advocating Rule Of Man, so long as it's a Man You Agree With.

This is actually a greater potential danger than the predictable, consistent authoritarianism of folk like Stephen Franks and Greg O'Connor -- at least we'll never be unsure of their loyalties. Let us hope we never see a Radovan Karadžić or a Charles Taylor with whom you happen to agree.


Graeme Edgeler said...

But which is the exception?

Chris Trotter said...

The "exception" is the set of circumstances in which the sovereign considers it necessary to set aside all legal and practical impediments to the full and unfettered exercise of his power.

For a more detailed explanation track down the constitutional advice tendered to George W Bush in the aftermath of 9/11.