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.

Dangerous Winners

Tens of thousands of Wellingtonians celebrate the defeat of Nazi Germany in the streets below Parliament, 9 May 1945. But what would have happened to the Anglo-Saxon powers if they had failed what British military historian, Correlli Barnett, calls "the audit of war"?

THERE’S a price to be paid for always being on the winning side. States and peoples who have been found wanting by the twin audits of war and revolution are forced to learn from their mistakes. The victors are under no such obligation.

New Zealand has been on the winning side of practically every war it has ever fought. Alongside the other fingers of the Anglo-Saxon fist: the United States, the United Kingdom, Canada and Australia; New Zealand has never had to endure the ignominy of military occupation, nor the harrowing rigors of that other handmaiden of defeat – social revolution. On the contrary, our armed forces and our political institutions have emerged from the storm and stress of successive wars not only intact – but wreathed in the laurels of victory.

In the face of such incontrovertible evidence of success, even the most muted and respectful attempts at criticism tend to sound like crankiness – or worse.

But, just imagine that the First World War had been won by Germany, and that, in defeat, New Zealand, along with the other Anglo-Saxon powers, had undergone a series of debilitating economic and social upheavals, culminating in the establishment of a cruel and arbitrary dictatorship.

Upon finally emerging from this nightmare of repression, would we not, as a people, be extremely wary of the instruments of coercive state power: the Army, the Police, the Courts, and the Penal System? And wouldn’t we also place a much higher value on the traditional protections against such arbitrary and undemocratic regimes: the public administration of justice; the presumption of innocence; and the right to be tried by a jury of our peers?

I’d like to think so.

But, of course, the Anglo-Saxon fist has yet to meet its historical match. And that, I suspect, is why so many of us still put so much faith in the coercive instruments of the New Zealand State. They have, after all, never let us down. It would certainly explain why so many thousands of Kiwis flock to ANZAC Day parades, and why the funerals of slain policemen take on the character of state-funerals – replete with honour-guards, pipers and aerial salutes.

It might also explain why so many New Zealanders’ prefer retributive – as opposed to rehabilitative or restorative - justice. The outrage talk-back callers routinely express at the very idea that prison-cells might be constructed with under-floor heating, or that inmates might occasionally be permitted to watch a flat-screen television set, says a great deal about this darker side of the Kiwi character.

If they, or their loved ones, had ever spent time in a dank prison cell, reeking with the stink of their own excrement, I wonder if these talk-back callers would, like the Dutch, Danes and Norwegians (whose homelands were all occupied by the Nazis) begin to take a more humane view of crime and punishment?

It would certainly help them to understand why Maori, whose armies were defeated, whose society was forced to undergo a wrenching series of economic and social upheavals, and whose homeland has been occupied for more than one-and-a-half centuries, look upon the Police, the Courts and the Penal System of the New Zealand State through very different eyes.

Or, if that’s too big an empathetic ask, they could simply carry out this little thought experiment.

Imagine you’re living under a Government which has removed the right to elect trial by jury for offences punishable by less than three years imprisonment. Then imagine that, in spite of a referendum indicating the contrary, this same government has refused to repeal the law eliminating the defence of "reasonable force" for hitting one’s kids. Now imagine a Crimes Act which mandates a maximum of two years imprisonment for common assault (which includes smacking).

What does it all mean? It means that if you’re arrested by the Police, charged with assaulting your child, and you enter a plea of Not Guilty, you will no longer have the right to be judged by a jury of your peers. Instead, your case may end up being heard by a female District Court judge, with a law degree from Waikato University, who just happens to believe that Sue Bradford’s anti-smacking legislation is the bees-knees.

You see now how foolish it is to assume that the never-defeated, all-powerful, Anglo-Saxon state is always your protector?

This essay was originally published in The Timaru Herald, The Taranaki Daily News, The Otago Daily Times and The Greymouth Evening Star of Friday, 22 May 2009.