2004: Our year in human rights

With everyone and their dog doing retrospectives at the moment, I thought I'd add to the chorus - by doing one on the progress of human rights in our country over 2004. Unfortunately, the progress was almost all downhill. The shining pieces of good news were the passage of the Civil Unions Act 2004, Paul Hopkinson's victory in his case over flag-burning, and a string of court victories for Ahmed Zaoui, culminating in his release on bail earlier in the month. But in general, the trend was one of erosion. Lowlights include:

• The introduction of the Identities Bill, which allows the government to deny or revoke the passport of any New Zealander (thus preventing them from travelling) on suspicion;
• Phil Goff's eagerness to introduce chemical castration for sex offenders;
• The deportation of a 16-year-old Sri Lankan girl back to her abusers;
• The introduction of majority verdicts on juries to make it easier for the crown to gain a conviction;
• Erosion of protections against double jeopardy;
• Imposing pregnancy tests on Tongan women wanting to visit New Zealand;
• Denying David Irving entry into New Zealand, essentially on the basis of his (repugnant, if it really needs to be said) views on the Holocaust;
• Phil Goff's attempts to prevent prisoners from being compensated for abuse or unlawful detention, in violation of our international commitments and the basic principle of equality under the law;
• Attempts by National MPs to require parental notification (or even consent) for teenage abortions;
• The prolonged incarceration of remand prisoners in police cells, under conditions worse than those required for the keeping of dogs;
• Phil Goff's plans to seize the assets of (in his words) "criminals who ha[ve] been acquitted of criminal charges";
• The laying of sedition (in addition to criminal damage) charges over the axe attack on the PM's electorate office.

I think this list shows that we have a lot more work to do if we want to live up to our international commitments and ideals on human rights.

By way of awards, I think dishonourable mentions have to go to

• The Solicitor-General, for saying that it would be acceptable for Ahmed Zaoui to spend five years in jail without charge;
• David Benson-Pope, for screaming "put him on the plane" during a Parliamentary question on Ahmed Zaoui; and
• The entire National, ACT, and New Zealand First parties for seemingly abandoning the idea of human rights entirely.

But as for an overall award, for the person who did the most to undermine human rights in New Zealand in 2004, I think the answer is obvious. One name features prominently in the above litany of shame: Phil Goff. His utter lack of concern for procedural safeguards, the rights of the accused (or convicted), actual guilt or innocence - for justice, in other words - really speaks for itself. This year, he gets the golden raspberry for egregious overachievement in the undermining of human rights standards. Maybe I'll send him a certificate...

Weird

If anyone can explain why I got 80-odd non-clickthrough visitors from Australia between 18:00 and 20:00 tonight (NZ time), I'd really like to know.

Open government finally reaches Britain

Tommorrow, thirty years after it was first promised, the UK will finally get a Freedom of Information Act. Rather than having to wait thirty years for information to become available, people will now be able to request information from the British government and expect a response (even if only a reason for refusing to provide what was sought).

The British legislation seems to be a little weaker than our own Official Information Act 1982, particularly with regards to information about policymaking. In New Zealand, information can be withheld in order to protect the free and frank p[rovision of advice by Ministers and officials, however in practice this lasts only as long as a matter is being considered. Once a decision has been made, such advice can be released. The British law, however, specifically allows only "statistical information used to provide an informed background to the taking of the decision" to be released once a decision is made; the implication is that all information on policy formulation - cabinet papers, briefing documents, official research, the bread and butter of any request in New Zealand - is exempt. Furthermore, there is a blanket exception to the duty to confirm or deny the existence of such information (unlike New Zealand, where refusing to confirm or deny existence itself requires good reason). There is also an extremely broad "effective conduct of public affairs" clause, which allows Ministers to refuse any request which (in their politically-coloured judgement) might adversely affect the business of government. This effectively grants Ministers and officials a blank cheque with which to cover their own arses. Still, even an act with these flaws is better than the previous regime, where British citizens had no right to know what their government was doing in their name, and far fewer ways of holding that government to account.

The Act will face its first real test immediately, with the Guardian's request for the British attorney general's advice on the legality of the invasion of Iraq. This is precisely the sort of information open government laws exist to uncover, and precisely the sort of information Blair's government does not want to see released - but if it is withheld, the new act will be tainted as a sham from its inception.

More on the torture plane and Bayard Foreign Marketing

The Oregonian has an article about Bayard Foreign Marketing, the front company used by the CIA to provide cover for their torture plane. Since the Washington Post story a few days ago, people around the world have been investigating the company's "owner", Leonard Thomas Bayard, without any luck:

Somehow, Bayard avoided the kinds of public record lists that include people who hold driver's licenses, own land, are registered to vote, have been married, divorced, killed or convicted. He or his company apparently pulled together the money to buy a multimillion-dollar Gulfstream V jet last month, yet they appear nowhere in federal corporate or regulatory filings.

His lawyer, Portland corporate attorney Scott Caplan, insists Leonard Bayard is a real person. If so, he's doing an awfully good job of hiding it.

According to the article, Bayard doesn't even have an SSN (I guess getting a fake one would have taken too long). The only evidence that he exists at all is a signature on a company filing with the Oregon state government.

Meanwhile, the aircraft itself (current tailnumber N44982) is now attracting extraordinary attention, so much so that the CIA has essentially given up on trying to keep it secret. There are obvious practical difficulties - the world is now aware of the practice of extraordinary rendition, and stories of hooded and chained prisoners in orange jumpsuits being herded onto planes in the middle of the night by masked Americans will be quickly reported along with the details of any aircraft used - but there is now also a complete lack of shame about what is going on. President Bush sees no problem with "disappearing" people and shipping them around the world to be tortured because Americans cannot legally do it themselves; given that, why should the CIA bother to hide things any longer?

Asset forfeiture: "a valuable means of revenue collection"

As if the human rights concerns over the government's proposed asset forfeiture regime were not bad enough, there's also the fact that the government's own advisers do not think they will be effective. The February 18th briefing paper noted that asset forfeiture's impact on crime was less than clear:

The NSW Crime Commission argues that, although there is no systematic empirical evidence, there is plenty of anecdotal evidence that organised criminals are deterred from offending if the profits of that offending are removed from the offender. Police in Western Australia have made similar claims. However, others we spoke to acknowledged that, particularly in light of the fact that 95% of cases in NSW are settled (allowing the offender to return [sic] a portion of their assets), confiscation may simply be seen by many as a tax on their activity

(My emphasis).

Settlements are a key part of Labour's proposal, as they allow the government to confiscate while avoiding the costs of trial. But this simply turns things into a financial calculation: if the government goes after your house, and the cost of defending it is high enough, it makes perfect sense to simply give them your car and save everyone the trouble. For people who already have to kick up to those higher on the criminal ladder, this is simply going to look like the government getting into the same game, and government shakedowns are going to be seen as a cost of doing business.

The same briefing paper is however clear about the advantages of a civil (rather than conviction-based) forfeiture regime:

It is clear that in both NSW and WA the amount recovered by way of civil forfeiture has very substantially exceeded what was confiscated under a conviction-based regime. In this respect, it can be seen as a valuable means of revenue collection...

This rather revealing statement was subsequently culled from future documents (as were concerns about effectiveness); however the first outline paper presented to Cabinet on March 15th continued to emphasise money, noting that "civil forfeiture schemes... have generally been much more effective at taking money out of circulation" and presenting a table showing total assets recovered under various overseas regimes - all of which went to the respective governments.

In New Zealand, there are already significant concerns about the police's focus on revenue-gathering through traffic enforcement. These concerns will only grow greater with the introduction of an asset forfeiture regime. As the March 11th briefing paper pointed out, there is a danger of creating a "perverse incentive" for police to focus on asset forfeitures because they are easier (and potentially raise money) rather than actual convictions. That is a risk I do not think we should take.

Pissing contests

In the face of intense criticisms from their own citizens, western nations are increasing their assistance to the victims of Sunday's tsunami. Canada has just upped its contribution tenfold; Wampum calls on the US government to do the same, noting that Canada is a tenth of the size (populationwise) of the US, but is now giving more. She also notes that she doesn't care if this "turns into a pissing contest, with sundry countries attempting to outdo each other".

Actually, I think a pissing contest is something we should try and encourage. It will be good for those in desperate need (one tenth of the population of Sri Lanka is homeless, for example), and it is far better to have a pissing contest on charity than one on tanks and guns.

So, by way of encouragement: New Zealand's contribution is NZ$5 milion, or around US$3.5 million at current exchange rates. That's about US$0.80 for every New Zealander. If the US gave the same, they'd be forking out US$235 milion or so - slightly more than the cost of one day's oppression in Iraq. If they upped their contribution to the level of Spain - which has given 50 million Euros (US$65 million) - they'd be giving almost US$500 million.

To help everyone along, here's a quick summary of government contributions per capita, using figures from Reuters for significant donors (and those above for Canada and Spain):

Country	Aid (US$ millions)	Population (millions)	US$/capita
Kuwait	100	2.2	45.45
Norway	182	4.5	40.44
Australia	764	20	38.20
Qatar	25	0.8	31.25
Denmark	75	5.4	13.89
NZ	47.6	4	11.90
Sweden	80	8.9	8.99
Germany	674	81	8.32
Austria	66.16	8	8.27
Finland	30	5.2	5.76
UK	242	60	4.03
Japan	500	128	3.91
Ireland	13.5	3.9	3.46
Switzerland	23.8	7.3	3.26
Canada	95	32	2.97
Netherlands	36	16	2.25
Taiwan	50.25	23	2.18
Italy	95	57	1.67
Spain	68	40	1.63
Belgium	16.32	10.3	1.58
USA	350	296	1.20
Saudi Arabia	30	26	1.15
France	66	60	1.10
Portugal	11	10	1.10
South Korea	50	49	1.02

Feel free to use this rough and ready comparison to encourage your own government to give more.

And OTOH, Oxfam is reminding people not to forget other crises, so I guess we don't want our governments too focussed...

Update (31/12/04): Britain has upped their contribution to US$96 million. France has also donated US$20 million. Table adjusted accordingly.

Update 2 (01/01/05): The US has upped their donation tenfold.

Update 3 (01/01/05): Major update as several countries have dramatically upped their contributions. Meanwhile, NZ's paltry US$3.5 million is looking more miserly by the hour...

Update 4 (02/01/05): Updated Japan's enormous increase, and added Finland, Italy, and Qatar.

Update 5 (04/01/05): Updated NZ's contribution. That's more like it.

Update 6 (05/01/05): Norway goes to the top of the table after updating for the figures in this BBC story (including pledged matching donations so far from Candada and Britain). And it looks like the US is about to be trumped again - Germany is reportedly planning to increase its contribution to US$680 million, and Australia is planning to kick in AU$500 million (US$389 million). That's from a country a tenth the size of the US...

Update 7 (06/01/05): Updated Germany and Australia.

Update 8 (07/01/05): Updated Saudi Arabia.

Update 9 (14/01/05): Added Taiwan, Belgium and Kuwait, and updated Austria.

Update 10 (18/01/05): Updated New Zealand's figure.

More on Uzbekistan's sham election

How much of a sham were Uzbekistan's elections? The OSCE's Office for Democratic Institutions and Human Rights (ODIHR) says that they require major improvements. The most significant problem was government limitation of the field which prevented Uzbeks from exercising any real choice:

Although candidates from five registered political parties and 55 candidates from initiative groups participated in the elections, the similarity of the political platforms of the registered political parties appeared to deprive voters of a genuine choice.

Three aspirant political parties were refused registration in the past twelve months by the authorities, and almost two-thirds of nominated candidates from initiative groups were not able to participate in the elections.

Muhammad Salih of the Erk Democratic Party talks of pre-election suppression of the opposition:

Another curious aspect of the Dec. 26 elections was that they were held under an artificial state of emergency. Particular attention was paid to the Ferghana Valley, Bukhara and Samarkand. Ten days before the elections, troops from the Interior Ministry, the Defense Ministry and the National Security Service began regular patrols of these regions. Security forces took full control of all city mosques and public places, supposed potential sites for terrorist attacks. Operations to detain "extremist elements" also took place. So-called suspicious persons were brought into local police stations and booked, or were simply arrested on the spot. These included political activists calling for a boycott of the elections. Arrests occurred across Uzbekistan, and human rights activists and opposition party members were followed, put under house arrest and not allowed to register at the polls, even though the main opposition parties, Erk and Birlik, had been excluded from the race.

These reports are confirmed by other opposition figures and human rights activists:

The three main opposition parties - Erk (Freedom), Birlik (Unity), and Ozod Dehqonlar (Free Peasants) - were excluded from elections. Erk and Ozod Dehqonlar boycotted the vote. Birlik decided to monitor the elections. However, party leader Vasila Inoyatova said she was not able to leave her house. "For the last two days, I have been blocked by some 'observers,'" Inoyatova charged. "There are some 'observers' in their cars [around my house]. I have no doubt that as soon as I leave my house, the government officials are going to pretend that I interfered in the election process or broke some laws. It happened before. Once we were going by car, the police stopped us and claimed we ran over someone. They can easily organize any provocation again.” Independent human rights activist Surat Ikramov said he also was carefully watched on Sunday. "I wanted to go to the polling station, but my house was blocked by several cars and observed during the last week," Ikramov said. "I telephoned some officials in the Interior Ministry. Soon, the cars disappeared. Then, I left my house to go to the polling station. They reappeared again and were watching me going to my polling station and to some others to monitor the situation. They were watching me all along the way." Uzbek officials were not available to comment.

Despite this, the Russians are happy, calling them "legitimate, free and transparent". Perhaps for Russia, but not for real democracies.

Ignorant rural hicks

Ah, Selwyn. An honest, backbone of New Zealand farming community responsible for such leading intellectual lights as Jenny Shipley. The sort of good, decent people, who would call for an HIV-positive intellectually-disabled man to be removed from their community because he could be "wandering round and depositing his bodily fluids"...

Does anybody even remember Eve van Grafhorst?

Merry Christmas

If this has worked, we should have comments.

We should also have monthly rather than weekly archives. Hopefully this hasn't bloggered all my backlinks in the process, otherwise I'll have to change back.

(Holds breath...)

Public service announcement

Via DPF: If you want to help those affected by Sunday's tsunamis, you can give $20 to the Red Cross by calling 0900 31 100.

Asset forfeiture: disappearing concerns

Last month I ripped into Phil Goff (again) over his plans for a civil forfeiture regime which threatens to apply Ahmed Zaoui standards of evidence to those suspected (or even acquitted) of criminal activity in order to seize their possessions. In response to an article in the Dominion-Post quoting briefing papers which were highly critical of the proposed regime, I submitted an OIA request to gain copies of the relevant advice to the Minister and Cabinet. Today, I got a thick packet of documents in the mail. They make interesting reading, and provide a perfect example of the way policy advice mysteriously transforms from "it's a crock of shit and it stinks" to "this will actively promote growth and vigour". Early papers raise questions of injustice and compliance with fundamental human rights. Somehow, these concerns mysteriously disappear before reaching Cabinet, replaced by the required statement that "the proposals in this paper comply with the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990" - followed immediately by a section redacted as being covered by legal professional privilege (meaning that it likely undermines that statement to some extent).

As an example, the first briefing paper (dated February 18th) starts from the position that an aim of any forfeiture regime must be to minimise unjust confiscations, and notes that

unjust confiscation may arise not only when an innocent person is wrongly suspected of criminal activity, but when a person involved in criminal activity has lawfully acquired assets confiscated other than as part of a criminal sanction.

It then goes on to raise serious concerns about the lack of safeguards in either the Western Australian or New South Wales legislation. Both use a civil (balance of probabilities) standard of proof, which "by definition... gives rise to the likelihood that a significant number of unjust confiscations will occur". And in both states,

property which has been partly unlawfully acquired must be confiscated in full, even if this would be quite disproportionate to the nature of the offending which gave rise to the unlawful acquisition

(My emphasis).

The second paper (dated March 11th) raises specific concerns with the idea of using civil procedures to punish people for criminal behaviour in the absence of their being convicted of (or even charged with) any crime:

24. Forfeiture without conviction could be regarded as an easier way of penalising criminal conduct without the safeguards or rigour of the ordinary criminal process. Hence, there is a risk that the availability of civil proceedings will create a perverse incentive because of their perceived advantages as to proof, they may divert police resources away from criminal investigations and take priority over criminal prosecutions.

25. A regime that adversely affects the interests of individuals suspected of, but not convicted of criminal offending is inconsistent to some legal commentators with the presumption of innocence and could possibly be seen as contrary to the Bill of Rights. To expose a person who has been found not guilty on criminal charges to the risk of forfeiture of property through civil proceedings on the same evidence may also be viewed as inherently unfair and contrary to double jeopardy principles.

These deep concerns about human rights and fundamental standards of justice simply disappear from subsequent papers, with no details on how (if at all) they were addressed. Instead, the proposals put forward to Cabinet increasingly mirror those previously criticised as unjust and ineffective. While the first proposal taken to Cabinet promises "a higher standard of proof than exists in New South Wales and Western Australia", it is noted in the February briefing paper that "in practice, this may not be different from the way the NSW standard operates" (the difference being that in NSW, cases where defendants can prove their assets were lawfully obtained don't even make it to court). And of course the final paper to the Cabinet Policy Committee (POL (04) 306) states that there are no human rights issues. As far as Cabinet is concerned, the shit that stinks has simply vanished; I guess they just got used to the smell.

Old Fisk

'The Army had not a word of compassion for the dead man, nor for his orphaned sons'
Who killed Baha Mousa?

Synchronicity

When googling around for information on the Uzbek elections for the post below, I came across a recent story on the torture plane - the white Gulfstram (tailnumber N379P) used by the US government to "render" terrorist suspects across national boundries so that they can be tortured.

The torture plane, it seems, has become an open secret in the "war on terror". And people have started looking into it. What they've discovered is unsurprising:

The plane's owner of record, Premier Executive Transport Services Inc., lists directors and officers who appear to exist only on paper. And each one of those directors and officers has a recently issued Social Security number and an address consisting only of a post office box, according to an extensive search of state, federal and commercial records.

[...]

Each of the officers of Premier Executive is linked in public records to one of five post office box numbers in Arlington, Oakton, Chevy Chase and the District. A total of 325 names are registered to the five post office boxes.

An extensive database search of a sample of 44 of those names turned up none of the information that usually emerges in such a search: no previous addresses, no past or current telephone numbers, no business or corporate records. In addition, although most names were attached to dates of birth in the 1940s, '50s or '60s, all were given Social Security numbers between 1998 and 2003.

In other words, what we are looking at is a CIA front company, designed to act as an owner of record for the plane and provide a tissue of commercial cover to its activities. Now that tissue has broken down, to the extent that planespotters are looking out for this aircraft, photographing it, and reporting its movements. This scrutiny - and regular mentions in media reports - have forced the CIA to juggle the corporate shell in an unsuccessful attempt to regain some secrecy:

Three weeks ago, on Dec. 1, the plane, complete with a new tail number, was transferred to a new owner, Bayard Foreign Marketing of Portland, Ore., according to FAA records. Its registered agent in Portland, Scott Caplan, did not return phone calls.

Like the officers at Premier Executive, Bayard's sole listed corporate officer, Leonard T. Bayard, has no residential or telephone history. Unlike Premier's officers, Bayard's name does not appear in any other public records.

Since then, they have changed tail numbers again. The torture plane spent some time as N8068V, but in an effort to break the link that registration now claims to be for a deregistered helicopter (an italian page has the original details). Now it seems the tailnumber to watch for is N44982...

Must read

Via About Town: Jim Peron of the Institute for (classical) Liberal Values has a great article on The Ugly Side of America, in which he talks of how his country has been taken over by fundamentalists and divided into competing extremisms. And like others, he sees the historical parallels:

And although I've been proud to be an American for most of my life that pride is shattered. My friends will tell you that I annoyed them by telling them about all the great things about America. I loved the spirit of liberty that made up America and that is embodied in the Constitution. Today I fear that is all dead. It's been pushed aside because of a president who campaigns on fear. He terrorises people into supporting him. If "terrorism" isn't enough he has other bogey men to trot out - hence his campaign against gay people. His whole re-election strategy is built on fear. And when people are afraid - even people who love liberty - they start making excuses for tyranny.

That is what worries me about America. I go back historically to Weimar Germany and see the same type of polarisation and fear. The Weimar Germans were separated into warring camps of extremists. Extreme Left versus the Nationalist Right dominated Weimar politics. People were afraid. Each side feared the other and feared what would happen to their nation if something wasn't done. America is setting itself up for the same "solution" that the Weimar Germans sought.

This was written before the US election. I expect he's even more worried now.

A tale of two elections

Viktor Yushchenko has won the Ukranian re-election. As for what this means, I'll leave it to Yushchenko himself:

"I want to say this is a victory of the Ukrainian people, the Ukrainian nation," he declared. "We were independent for 14 years, today we became free.

"Today, in Ukraine, a new political year has begun. This is the beginning of a new epoch, the beginning of a new great democracy."

(My emphasis)

Standing up for real democracy has hopefully laid a good groundwork for that project. I wish them luck for the rest of the journey.

Meanwhile, in Uzbekistan, it's business as usual. They had an "election", in which no opposition parties were allowed to run. Not formally, you understand, but their applications were all mysteriously found wanting on technical grounds. As a result, Uzbeks faced an electoral choice which was no choice at all - exactly like Iraqis under Saddam.

Uzbekistan is a vital ally of the US in the "war on terror", so criticism of this fraud has been muted. I do not expect to see Colin Powell standing up to say that the election was a lie, that the Uzbekistani government is illegitimate and threatening "consequences for our relationship" unless there are real and transparent elections. The US gets everything out it wants out of the present regime (including possibly a little torture by proxy) and sees no real reason for change. After all, if boiling people alive isn't a deal-breaker, then a little fixed election certainly isn't. And besides, they have a good excuse: all this manipulation is justified by the necessity of keeping Islamic candidates out of office.

Everything said about Ukraine is equally applicable to Uzbekistan. Uzbeks too deserve free, fair and transparent elections - regardless of their religion. The world - and the US - should stand up for that, just as we did for Ukraine. Otherwise, we are not on the side of democracy, but of tyranny and realpolitik.

Geekery among the ruins

For those of you wondering how yesterday's tsunami-inducing 9.0 magnitude earthquake stacks up against others, it is officially the 4th-equal largest since 1900. The largest earthquake last century (and on record) was a 9.5 which struck Chile in 1960.

The USGS has a list of the ten largest earthquakes since 1900 here. Last week's 8.1 off Macquarie Island doesn't make the list, though it was the second-largest earthquake of 2004.

Freeing us from fear

While the Labour government deserves to be criticised for its hostility to human rights, it also deserves to be praised for its genuine successes in the area of economic and social policy. They've dramatically increased the minimum wage, reduced unemployment, and attempted to end the culture of paternalistic oppression and outright hostility at WINZ. But one of their most significant achievements has happened almost by stealth: most New Zealanders now enjoy economic peace of mind. A survey cited in the Herald today finds that 87% of New Zealand workers feel their jobs are secure - an increase on last year, and a massive increase on thirteen years ago, when over half of workers expected to be unemployed within a year. It is only attitudinal data, but it is more important than it looks. As residents of a stable and peaceful country which respects human rights, New Zealanders do not fear war, murder, or torture - but we do fear losing our jobs and the subsequent disruption of our life-plans. Labour has to a great extent freed us from that fear, allowing us to get on with enjoying our lives.

While there's no question that much of this can be attributed to the present economic good climate - people know very well that their chances of losing their job depends on broad economic performance - Labour can claim some credit for that as well, in particular by not strangling the economy the moment it started to grow (as Don Brash repeatedly did during his tenure at the Reserve Bank). But more importantly, their labour market reforms have been aimed at improving job security and certainty for the average worker; contrast this with National, whose macroeconomic and labour-market policies were (and still are) aimed at increasing insecurity for the benefit of employers.

Post-christmas thought

So, has anybody else noticed the uncanny resemblance between the tradition of leaving food and drink out for Santa, and a pagan sacrifice?

Preventing a grave danger to justice

The Herald is screaming about a case against a sex-offender which was thrown out because it took too long. They'd obviously prefer that a stay of proceedings had not been granted, but that would pose a grave danger to justice. Memory fades with time, and as a result the evidence people can provide on the stand becomes progressively more unreliable. Too long a wait, and any becomes inherantly unsafe. How long is "too long" will depend on the case, but the fact that the defendant here was intellectually disabled with a severe memory problem which made it difficult to remember last month, let alone events from three years ago, suggests a relatively short period. He would have been incapable of participating in his own defence, incapable of giving evidence on his own behalf, and incapable of questioning (or verifying) his previous confession - in other words, incapable of presenting his side of the story. The "hang 'em high" brigade may be comfortable with mounting "trials" under these circumstance, but I am not. Such would be tantamount to a trial in absentia and a mockery of justice.

That said, it is disgusting that our legal system is so inefficient that in some cases people must be allowed to go free rather than face justice. And the finger can be squarely pointed at the government - not for setting too high a standard (it is not them, but justice which dictates that people be released if their trial has dragged on too long), but for failing to provide the proper resources to allow all cases to be completed in a timely manner. Simply put, we do not have enough judges, and those we do have are not properly resourced (some cases have been delayed not due to the lack of a judge, but the lack of a courtroom to hold the trial in). This is something the government - or rather, the Minister of Justice - can remedy, and the sooner they do so, the better.

Cloning cats for christmas

BBC had a story the other day about a women who paid US$50,000 to clone her beloved (and departed) cat. My instant reaction is that anyone spending money expecting to get a "duplicate" of a beloved pet is a complete fool - cloning just doesn't work like that. Sure, you get a genetically identical copy of the donor, but genetic identity is not personal identity. Identical twins prove that decisively, but people insist on seeing clones as being somehow an extension of the donor, rather than what they actually are: a differently aged twin.

(To their credit, the company involved, Genetic Savings and Clone, are reasonably clear on this. The only deception here is self-deception on the part of the customers.)

You can call cloning a pet a colossal act of vanity, and argue that there are far better things to be spending the money on (providing homes for homeless pets, for example), but it does serve a real purpose. The biggest problem with cloning at the moment is that it doesn't work very well; most cloned embryos spontaneously abort, and those that survive to full-term are often sickly and short-lived. According to GS&C's Ethical FAQ,

Twenty-five percent of all animals born through cloning using current technology have suffered some kind of cloning-related health problem, ranging from mild to terminal

That's not the sort of failure rate we can accept with cloning humans, but cloning mammals like cats, cows and sheep will allow us to iron out these bugs and reduce the risks of cloning people in the future.

Undermining transparency

Four years ago, the UK made a landmark move towards government transparency - a mere twenty years after the rest of the civilised world - by passing a Freedom of Information Act. Unfortunately, rather than begin immediate disclosure, implementation of the Act was delayed for four years to allow government departments to put processes in place. The Act will finally come into force on January 1st - and British government are expecting a flood of requests. But they've used the delay productively, all right - by shredding everything in sight:

Julian Lewis, the shadow Cabinet Office minister, warned that the frantic activity could deprive academics and historians of potentially vital information about the run-up to the Iraq war and previous conflicts such as the Falklands. Mr Lewis said: "There has been a dramatic and disturbing increase in the number of files that have been shredded. The steep rise in shredding in some departments is hard to account for other than the awareness that information in these files will no longer be classified as confidential. In the past, the Government could say nothing until 30 years had elapsed.

"It looks like there has been a bonfire of historical records."

The article gives details on the dramtic rise in document destruction across several government departments, and there seems to be little explanation other than a systematic attempt to undermine transparency by purging emabarrasing information and dirty secrets that career civil servants and ministers do not want to come to light.

A sad bastard with no life

Everybody else seems to be announcing that they will be shutting down for the christmas holidays, so I'd like to make it clear that I won't be. This is for two reasons. The first is that I've been rather stretched for time lately, and am actually quite looking forward to a week of uninterrupted bonding with the blog. The second is simply that I am a sad bastard with no life.

Hopefully I'll be able to use the time to bang out some of the longer pieces I have floating around, or order my thoughts on some of the more interesting posts I've seen recently but have felt unable to comment on due to insufficient time. Or maybe I'll just vent my spleen about the current state of the world. But either way, I will be here, and I will be blogging. Hopefully there'll actually be interesting news for me to blog about...

Comparisons

I've just had a response back to another of my OIA requests, and it really shows the differences between government departments. Getting answers out of Corrections is like getting blood out of a stone (their most recent answer was late and ignored a large amount of the request), Defence took the full twenty working days, and Justice is getting very close to that limit on a request I sent away for information which had already been released to the media. I had however heard that DoC drops everything when they get an OIA request and processes it immediately, and it seems to be true: accounting for postage time, they must have taken less than two days to respond to my most recent question.

This really shows the difference internal culture can make. Other government departments should take a page out of DOC's book, and give similar instructions to their staff to respond to public scrutiny in a timely and efficient manner, rather than viewing the twenty day limit as a standard response time to be ignored whenever convenient.

Indecisive?

The Dominion Post reports that kiwis are indecisive on polling day because 30 percent of us make up our minds in the last months of an election (and 16% on the day itself). This compares with 7 percent of Britons and 4 percent of Americans deciding their vote at the last minute. But rather than "indecisiveness", this result shows something rather more positive: that New Zealand voters are politically more open-minded than their American or British counterparts.

In the US, the parties are highly partisan, and while there is traffic between the two camps, it is a Big Deal to change your lifelong political loyalties. A similar situation exists in the UK, where people are born, live, and die as Labour or Tory voters. By contrast, New Zealand has a far lower degree of party loyalty - and our democracy is far healthier for it. Our parties must actually convince people to vote for them, rather than simply working to mobilise their base. This acts as a moderating force on major party policies (which must have at least some appeal to the third of undecided voters), and makes for far greater engagement with the public. American and British voters should be so lucky.

A Reminder

Scoop today has an interview with documentary-maker Alister Barry on what Don Brash would do as Prime Minister. While it's good reading, the most potent reminder of what Don Brash stands for is the picture heading it:

That's Ruth Richardson he's shaking hands with. For people who remember the horror of the 90's, he might as well be shaking hands with Satan himself. As finance minister, Richardson oversaw policies which deliberately set out to lower the living standards of the poorest members of our society for the advantage of the rich. An example of this is the 1991 benefit cuts, which reduced core benefit payments to below starvation levels in an effort to "incentivise" the poor to work. But when macroeconomic policy was creating unemployment, and the Employment Contracts Act was pushing wages down to the level of the dole, all it did was create misery. Because of Ruth Richardson, we got an underclass in New Zealand, and foodbanks became a growth industry. This is not something that she will be forgiven for.

I think that this photo is the best weapon in Labour's next election campaign - and it has the advantage of truth. As Alister Barry points out, Brash would take up where Richardson left off. That's something the public should be reminded of.

Contrasts

Meridian Energy has gained resource consent for its planned 70 MW wind farm near Mossburn in Southland. The local community was overwhelmingly supportive, with 90% of submissions approving of the project. Meanwhile, here in Palmerston North the hearings over Windflow's 50 MW Te Rere Hau development have turned into a real shitfight, with large numbers of local residents opposing the spread of "unsightly" turbines along the Tararuas.

I guess Palmerston North simply has more NIMBYs...

Danger for Labour?

Writing in the Guardian, Tony Benn highlights six dangers for Labour which are progressively alienating its core supporters. He's writing about the British Labour Party of Tony Blair, but there is a similar trend at work here: in the struggle to hold the centre ground against National, the New Zealand Labour Party has adopted the Blairite tactic of trying to outflank their opposition on the right. While this robs National of issues, it is making the party increasingly unpalatable to parts of its support base.

The obvious danger area is the crime/immigration/security axis. Labour has fought hard to avoid being labelled "soft on crime", increasing penalties and reacting to any perception of "weakness" with draconian new legislation. They have just introduced legislation to prevent prisoners from gaining compensation for being abused in prison (effectively making them second-class citizens and giving abusers a free pass), and are considering an asset forfeiture regime which treats suspects as being guilty until proven innocent and would not require any specific offence to be proved. On immigration, they have moved us from being an open, welcoming country to one that says "don't call us, we'll call you" and demonised people seeking refuge in this country. Their attitude is epitomised in the treatment of Takshila, a 16-year old Sri Lankan girl who was forcibly sedated and deported from New Zealand back into the hands of her abusers. The Labour party of old would have had a sense of mercy; under Clark, they regard it as a weakness rather than a virtue.

On security, we have seen an erosion of civil liberties in the name of the "war on terror", with the government passing a "Terrorism Suppression Act" so vague as to allow Greenpeace to be designated as a "terrorist entity", and pushing a bill which would allow the government to strip New Zealanders of their passports with no effective or timely right of review. And then there's the Ahmed Zaoui case. While the government could have taken a neutral stance and hidden behind the courts, or (god forbid!) stood up for the right of everyone to a fair trial, they have instead backed the SIS to the hilt and taken every opportunity to try and deny Mr Zaoui his human rights. The position of some government MPs has at times been indistinguishable from the xenophobes of NZ First on this issue; David Benson-Pope, for example, has echoed the NZ First call for Zaoui to simply be put on a plane, regardless of his refugee status.

These are not the sort of policies traditionally associated with a Labour government, and they have a cost: the progressive alienation of the liberal strand of Labour's support base. Labour is pursuing them to "capture the middle ground" and hold power - but at the cost of losing its soul.

Where the New Zealand Labour Party differs from its British counterpart is that it really is delivering in social areas. Blair's Britain seems little different from Thatcher's, and in many areas his government has simply continued her policies. But Clark's New Zealand has put the brakes on the neo-liberal economic revolution, and while it has not rolled it back significantly, it has counteracted the worst effects of the neo-liberal core. In areas of labour law, welfare policy, and commitment to public services, the New Zealand Labour Party stands exactly where it should. But on human rights issues it falls well short of what is expected.

Unlike Britain, New Zealand voters have alternatives. If they cannot stomach voting Labour because of their attitude towards human rights, they have other credible left-wing parties to choose from. And voting for these alternatives does not run the risk of "splitting the vote" and allowing National to come through, because it does not affect the left's overall share of the party vote. Instead, it simply alters the balance among the potential coalition partners, in favour of greater respect for human rights. The danger for Labour then is that an increasing number of their supporters will take this opportunity, and vote to have a stronger left-wing coalition partner as the keeper of Labour's conscience.

Submit!

The Justice and Electoral Matters Select Committee is seeking submissions on the Prisoners' and Victims' Claims Bill. 20 copies, by Friday, 4th February 2005, to:

Helena Strange
Justice and Electoral Committee Secretariat
Parliament Buildings
Wellington

A submission does not have to be complicated - it can be as simple as a letter, if that's how you prefer to express yourself. Democracy works best when people participate, so if you have an opinion on this legislation, please make it known to the committee.

Transparent play for funding

The SIS, in a transparent play for more funding, claims that Islamic terrorists are likely to be in New Zealand. I guess they have to explain the success of the free Zaoui campaign somehow. But seriously, I think Keith Locke is right to ask why, if there are so many "terrorists" and "terrorist sympathisers" in New Zealand, none of them have been charged. We have laws on our books making it a crime to collect money or financially support terrorist organisations. And we have laws against assisting in the production of weapons of mass destruction. If the SIS has concrete evidence that people in New Zealand are doing these things, they should hand it to the police so it can be put before the courts. Instead, it seems they'd rather sow fear in an effort to make themselves seem relevant.

Real progress by any measure

The government is increasing the minimum wage again, to $9.50 / hour. When it came into office in December 1999, the minimum wage stood at $7 / hour - so the poorest workers have seen a 35% pay rise in five years. That's real progress by any measure.

Under National, of course, this would be "gone by lunchtime".

Labour is also raising the Student Loan repayment threshhold, from $16,172 to $16,588 - substantially less than the income from a full-time, minimum-wage position. Which says something about how much "private benefit" the government thinks people get out of tertiary education. If they really believed the ideas the student loan scheme was predicated on, they'd raise that thresshold to at least the median full-time wage. But I guess then they'd see even less of their money back...

More from the ACLU's treasure trove

The ACLU's treasure trove of FBI documents contains a few other scary ones. One email complains about Defence Department interrogators using "torture techniques" while claiming to be FBI agents, and worries that "The FBI will [sic] left holding the bag before the public". A followup email suggests that this "was approved by the Dep Sec Def" - Wolfowitz.

A second email regarding Guantanamo reports that FBI personnel

witnessed sleep deprivation, [REDACTED] and utilization of loud music/bright lights/growling dogs in the Detainee interview process by DOD representatives

Clear examples of torture, in other words. And is it telling now that the US doesn't even bother trying to hide it anymore. After four years of Bush, have they no sense of shame left?

Finally, an "Urgent Report" to the Sacramento Field Office describes the testimony of an individual who

observed numerous physical abuse incidents of Iraqi civilian detainees conducted in [REDACTED] Iraq. He described that such abuses included strangulation, beatings, placement of lit cigarettes into the detainees ear openings, and unauthorized interrogations.

[...]

[REDACTED] was providing this information tot he FBI based on his knowledge that [REDACTED] were engaged in a cover-up of these abuses.

which sounds very much like the allegations made by Sgt Frank Ford earlier in the month.

The ACLU finds the smoking gun: Bush personally authorised torture

After Abu Ghraib, journalists exposed how many of the techniques for which the abusers were being prosecuted were in fact authorised for use on detainees in Guantanamo and Iraq (just not by them). Since then, they've been trying to find out exactly how high it goes. Now the ACLU has found the proverbial smoking gun: an email which suggests that Bush himself directly authorised the use of torture:

The two-page e-mail that references an Executive Order states that the President directly authorized interrogation techniques including sleep deprivation, stress positions, the use of military dogs, and "sensory deprivation through the use of hoods, etc." The ACLU is urging the White House to confirm or deny the existence of such an order and immediately to release the order if it exists. The FBI e-mail, which was sent in May 2004 from "On Scene Commander--Baghdad" to a handful of senior FBI officials, notes that the FBI has prohibited its agents from employing the techniques that the President is said to have authorized.

The full text is here. There are repeated references to the Executive Order and to FBI agents witnessing the techniques being used. The list of techniques is repeated in two places. There's no question whatsoever of the ACLU misinterpreting what is being said; it is perfectly clear and explicit: authorisation for abusive techniques tantamount to torture came from the President himself.

Unfortunately, the order itself is required to prove this - and the White House will do its utmost to hide behind "national security" to avoid releasing it. I guess we'll just have to hope for a leak. It also raises the question of what else the President has authorised - there are reliable reports that US interrogators have used "waterboarding" (drowning and suffocation) when interrogating high-level detainees. Is this also authorised by the President? Unless someone comes forward, we'll never know.

But what really worries me is that the American public will look at this - at evidence of total moral bankruptcy at the highest levels of their government - shrug their shoulders, and go "so?" And then there really will be no hope for America.

Sedition by example

For those of you wondering why I am outraged that an Auckland man has been charged with "seditious conspiracy", perhaps a few concrete examples would help. The Crimes Act 1961 defines a seditious conspiracy as

an agreement between 2 or more persons to carry into execution any seditious intention

and a seditious intention as an intention:

(a)To bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government of New Zealand, or the administration of justice; or

(b)To incite the public or any persons or any class of persons to attempt to procure otherwise than by lawful means the alteration of any matter affecting the Constitution, laws, or Government of New Zealand; or

(c)To incite, procure, or encourage violence, lawlessness, or disorder; or

(d)To incite, procure, or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order; or

(e)To excite such hostility or ill will between different classes of persons as may endanger the public safety.

So, for example, saying that the royal family were inbred imbeciles who were intellectually outmatched by their incontinent corgis would be seditious, as would Ian Wishart's lurid fantasies about Helen Clark and Judith Tizard (shades of lese majeste, anyone?). Saying that the present government is not the lawful sovereign of New Zealand almost certainly falls foul of this as well - so the entire tino rangitiratanga movement and an entire generation of New Zealand historians are technically criminals. Saying that we should practice civil disobediance or simply ignore laws that are stupid, unjust, or a gross violation of human rights is a no-no as well. And being a Communist or a unionist and stirring up the lower classes against their "betters" is obviously right out.

Note that this is about intentions - you don't even have to say any of the above, you only have to think it. In other words, we have ThoughtCrime in New Zealand.

Not that that means you can spread these dangerous memes without penalty. Making or publishing any statement which expresses a seditious intention - saying any of those things - can see you jailed for up to two years, as can distributing or selling it or simply allowing your printing press or any "electrical apparatus" (which means photocopiers - and computers) to be used to produce it or to "facilitate" its publication. I guess all those bookshops currently stocking that pretty new edition of The Communist Manifesto are in deep shit, then.

I can think of no better example of a stupid and unjust law - and like other stupid and unjust laws, it deserves to be broken. Until it is repealed, we should make a point of violating it, gratuitiously and wantonly, simply to show how stupid it is.

Of course, saying that is a crime...

Si non confectus non reficiat

Opposition eaction to today's cabinet reshuffle, in which remarkably little shuffling seems to have been done has been some variation on the "same tired old faces" line. But what did they really expect? Labour has some very strong Ministers in key portfolios - Maharey in Social Development, Goff in Foreign Affairs, Mallard in Education - and while some may want to try their hands at something new, and new talent must be trained up for the eventual renewal, it would have simply been madness to change everything less than a year out from an election. In this reshuffle, Helen Clark seems to have once again shown that her maxim is the same as Lord Vetinari's: "if it ain't broke, don't fix it".

The most interesting moves are Hodgson, Mallard, and David Benson-Pope. Hodgson is an uber-wonk, and getting him into the commerce portfolio gives him an area he can tinker with to his heart's content. Mallard is the shitkicker, and moving him to energy probably means a few key industry players are going to have their kneecaps broken. I'd guess that its mainly the gas sector which is the target, though some attempt to fix our dysfunctional market mechanisms may also be in the pipeline. As for Benson-Pope, they're clearly grooming him for a succession, to free up Mallard for other duties in a couple of years.

The problem is that aforementioned renewal. It has to happen eventually - while Labour's senior ministers are still relatively young, they will move on one day, and thought must be given to ensuring that there are people capable of taking their place. Unfortunately, worries about having to share the cabinet table after the next election, coupled with a desire to avoid major changes (and their implication that someone has fucked up) mean that not enough attention is being paid to this. National's current line-up - a rump of talentless no-hopers and overambitious has-beens - provides a salutory reminder of the importance of thinking long-term and regularly promoting new blood. Unless Labour wants to end up in the same boat after its eventual election defeat (and they will lose one day), it needs to start planning for the future.

Discomfort with public input

As someone who's spent the last few months emailing MPs on the Civil Union Bill, and egularly encourages people to contact them and lobby on other legislation, I find it rather troubling that our MPs don't like being "flooded". Unsurprising - nobody likes being buried in email - but troubling nonetheless. It bespeaks a discomfort with public input and oversight more in keeping with an aristocracy than a democracy.

I wonder if they had the same reaction to the widespread use of telephones?

Update: Not every MP is unhappy with receiving email from the public. A spokesperson from the Greens has contacted me to say that if Future Times had contacted them, they would have responded quite differently. I guess the MPs they did contact were just behind the times.

The No Right Turn Christmas Appeal

It's Christmas, so I thought I'd rattle the tip jar. OK, so I don't actually have a tip jar, but I thought I'd rattle one anyway - not for me, but for other people who are far more deserving of the money. If you've enjoyed reading this blog over the past few years, or simply if you are a naturally generous person, and you have the money to spare, please consider clicking one of the links below and making a donation.

If you support human rights, then please consider donating to the New Zealand section of Amnesty International. They're a strong and impartial voice for the release of prisoners of conscience, for proper trials for political prisoners, and for an end to the death penalty, torture, extrajudicial executions (otherwise known as "murder") and "disappearances". They do good work - and they get results. Their ability to publicise cases and bring international pressure to bear from governments and ordinary people such as you or I has saved thousands of people from imprisonment, torture, and death.

If supporting human rights is too "political" for you, or simply if you love animals, please consider donating to the Auckland SPCA. They deal with cases of animal cruelty, take care of strays, and run information campaigns to encourage responsible pet ownership. They have a particularly tough time around christmas, as people buy pets and then lose interest or discover that they cannot keep them, and your money can definately help. You can either use their web form for credit card donations, or simply dial 0900 99 SPCA (0900 997722) to donate $25 billed through your phone account.

My choice of charities is essentially arbitrary. There are countless other causes which are equally worthy, and these are just the two that I thought of and thought that other people would support. I have no way of knowing if any of you donate or not, but please do so anyway. It's Christmas, after all.

The ICC proves its worth

The International Criminal Court has taken the first step towards putting Tony Blair in the dock, by beginning a formal investigation into whether the UK committed war crimes against Iraqi civilians. The investigation is a response to a formal complaint by a panel of British legal experts, who alleged that the British military had shown reckless disregard for civilian lives by using indiscriminate weapons such as cluster bombs, and had deliberately targetted civilian infrastructure such as power stations and water treatment plants.

In a letter seen by The Independent on Sunday, the chief prosecutor of the ICC in The Hague has described the war crimes allegations as "one of the most significant" cases he has seen, and were being given "deserved weight" by his investigators.

Luis Moreno Ocampo, the chief prosecutor, indicated that his office has now begun the formal process of gathering evidence about the claims and is now expected to ask the Government to explain its military strategy in Iraq.

The ICC has proved its worth with this action. Even if no charges are ever laid, the mere threat of them ought to be making some people in the British government very uncomfortable at the moment. Those who thought themselves answerable to no-one, not even the electorate (who they believed could be spun and manipulated into supporting the unsupportable), have just been given an unwelcome reminder that they are not above the law, and that they could one day be held accountable for their actions. That ought to cause them a few sleepless nights. And as a leading advocate for the ICC, Britain can hardly do a Bush and "unsign" it, or at least not without sacrificing a great deal of mana on the international stage.

But what I'm really looking forward to is the effect this will have on the wider international community. The ICC has just nailed its colours to the mast, and announced that it stands for a true international legal order, in which both powerful and powerless will be subject to the same rules, rather than simply being a partial tool of rich nations against governments who refuse to be subserviant little clients. Hopefully this will have a chilling effect, and cause governments to think twice before waging war or participating in further dubious US adventures in the future.

Regulations vs Orders In Council

MusiCal defends Orders In Council by pointing out that they are used for passing statutory regulations or subordinate legislation, which comprise a large body of New Zealand law. For example, the Civil Union Act 2004 allows the Governor-General, by Order In Council, to enact regulations for the following purposes:

(aa) prescribing types of overseas relationships that are recognised in New Zealand as civil unions

(a) prescribing fees [...]

(b) prescribing forms to be used for the purposes of this Act

(c) prescribing the matters that must be included in forms (other than prescribed forms) used in connection with civil unions

(d) providing for any other matter contemplated by this Act, necessary for its administration, or necessary for giving it full effect

Without this power all of these details would have to be present in the Act itself, and any changes would require new legislation to be passed - a process Cal calls

unnecessary, unwieldy and time-consuming. Our current government departments and parliament could not operate without regulations made by Order in Council.

But it's not this sort of Order In Council I object to. As Cal points out, these are explicitly authorised by Parliament and subject to oversight through the Regulations Review Committee. While not as open as formal legislation, they are subject to democratic oversight. Instead, it's the ability to pass an Order In Council without specific Parliamentary permission I object to. This power is a remanant of legislation by royal proclaimation, and has not yet been revoked. And it is a total blank cheque for the executive. Such power is simply incompatible with the idea of a democratic state in which all executive actions must ultimately be authorised by the legislature and subject to democratic oversight.

Update: The Holden Republic responds to Cal here.

The decline of America

Almost four hundred years ago, the pilgrim fathers set sail for the New World to find a home where they could freely practice their religion without interference from the state. Today, nearly half of the population of the country they helped to found believe that the government should restrict the civil rights of Muslims:

The survey found 44 percent favored at least some restrictions on the civil liberties of Muslim Americans...

The survey showed that 27 percent of respondents supported requiring all Muslim Americans to register where they lived with the federal government. Twenty-two percent favored racial profiling to identify potential terrorist threats. And 29 percent thought undercover agents should infiltrate Muslim civic and volunteer organizations to keep tabs on their activities and fund-raising.

The good news is that 48% of respondents said that people's civil liberties should not depend on their religion, so I guess the spirit of America isn't quite dead yet.

Cutting England's laws flat

The British government is ignoring its own highest court and is refusing to release the nine men it has detained without trial. On friday, the Britain's Law Lords ruled that the indefinite imprisonment without trial of foreign terrorism suspects was discriminatory and violated the UK's obligations under the ECHR and ICCPR. The government has since denounced the decision as "wrong" and announced its intention to continue holding the men until the law has been reviewed. I think this, more than anything else, proves Lord Hoffmann’s point that

The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these

And to that, we should add from governments who are so afraid of the threat of terrorism that they would sacrifice not only human rights, but the very rule of law on which their authority is based. The dangers of this were pointed out in the famous exchange between Sir Thomas More and William Roper in A Man For All Seasons:

Roper: So now you'd give the Devil benefit of law!

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I'd cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

Terrorism may have replaced the Devil as the bogeyman, but the same principle applies. The rule of law is the foundation of organised society and governmental authority. Without it, none of us are safe. The British government would do well to remember that.

Orders in Council and Republicanism

The Holden Republic has an excellent overview of the constitutional atrocity of Orders In Council and why we should get rid of them. I should add that it's not strictly necessary to become a republic to get rid of them - we could, for example, have the Queen write new Letters Patent which denied her the power of revision without a formal invitation from Parliament - but that's hardly likely. I associate the elimination of Orders In Council with republicanism for the simple reason that republicanism stands for a single source of law: a democratically elected Parliament. As a remnant of royal decree, Orders In Council would thus be discarded. The trick is to make certain that they are not replaced with something similarly odious.

Another reason is that the move to a republic will necessarily involve the codification and therefore limitation of government. The problem with our current system is that we have simply replaced an absolute monarch with an absolute Parliament. A move to a republic will hopefully allow us to finally impose proper limits on government, to ensure that it respects human rights and does not act without allowing proper time for public oversight.

Stealing a nation

If you missed this Pilger documentary last night, then track it down it watch it. It is the appalling tale of how the Chagos Islanders were forcibly deported from their own country by the British, imprisoned like criminals, then dumped penniless on the docks in Mauritius so that Britain could give their home to the US to build a military base. Nowdays, we'd call this "ethnic clensing" and prosecute those responsible; back then, the British government didn't even pause to think before doing this to its own subjects.

Thirty years later, the Chagosians are still living in the same slum they ended up in. Many have committed suicide or died of "sadness". And they are still fighting for justice - a case in the High Court in London ordered the British government to allow their return. The government's response was first to stall, and then to issue an Order In Council (a decree from the Queen, acting on the command of Cabinet) nullifying any claim they had to their homes. Legally, they have gotten away with it. Morally, it is a shameful act which should hang like an albatross around the neck of the UK until it makes amends.

(The ability to issue an Order In Council without prior statutory authorisation, BTW, is one of the chief reasons New Zealand should become a republic. An OIC can do anything, and due to the process, is effectively done in secret, with no scope for public input. This is incompatible with the democratic principle that laws should be made openly and subjected to public scrutiny.)

The interviews with government figures were interesting. The spokesman for the foreign office talked incessantly about the cost to the British taxpayer of supporting the Chagosians if they returned home; there was simply no conception of an obligation towards the people they had so cruelly disposessed. The Americans, OTOH, simply couldn't understand why anybody would give a shit about the eviction of some wogs thirty years ago, or grasp the concept that justice might apply in small cases as well as large ones. Underneath all this is the logic of the Milian dialogue: "the strong do what they can; the weak suffer what they must".

That idea is an excellent reason to work to constrain powerful nations. If hegemony permits this sort of behaviour, then we shouldn't have hegemons. I know, it's easier said than done, but it is something to aim for.

No accountability

That's the key finding the State Services Commission's "goon squad" enquiry: that the Corrections Department failed to lay down clear lines of accountability for its Canterbury Emergency Response Unit (CERU). The results were entirely predictable: the CERU developed an "inappropriate militaristic culture", assaulted and abused inmates, and generally behaved like a gang of thugs rather than the professional staff of a penal institution.

Corrections claims that people have been held accountable; senior management were disciplined and lost their bonuses. But they kept their jobs, as did the members of the goon squad itself (some of whom, it should be noted, won significant compensation after a botched attempt to fire them; apparently Corrections had failed to make it clear that assaulting inmates was serious misconduct justifying instant dismissal). But by far the most telling sign of a total lack of accountability is the fact that not a single member of the goon squad has been prosecuted, despite the group being responsible for several serious assaults and at least one death.

Given this lack of accountability, Ron Mark is right in calling for heads to roll at Corrections. But we must go further than that: the police must investigate the criminal behaviour of the "goon squad" and lay charges if possible. Otherwise, our justice system will be nothing more than a joke.

DPF on "seditious conspiracy"

DPF notes my opposition to charging Tim Selwyn with "seditious conspiracy", but thinks that as it is about his pamphlets, we "should not jump to conclusions over whether the charge is approproiate". But it is not the appropriateness of the charge I take issue with, but the very idea of sedition itself. We simply should not be criminalising political speech, of any stripe or character. We have perfectly good laws regarding conspiracy to murder, conspiracy to commit criminal damage, and conspiracy to commit terrorist acts, and these are more than sufficient to deal with those who actively plot the violent overthrow of the government. But if someobody is not actively plotting, but merely advocating in the abstract, or claiming that the government is illegitimate, then that should not be criminal, any more than abstract hate speech (as opposed to specific threats or incitement) should be.

The rule of law triumphs in Britain

The response of democratic governments to the terrorist attacks of September 11th, 2001 has been to tighten immigration regulations and to pass legislation typically allowing for indefinite detention without trial of suspected terrorists, turning the "war on terror" into a war on human rights. But in Britian, at least, some form of sanity seems to be returning. In a case which directly parallels that of Ahmed Zaoui, the UK's highest court has ruled that indefinite detention without trial violates Britain's human rights obligations under the ECHR, ICCPR, and other international agreements. While the decision is made on the basis of discrimination - that indefinitely imprisoning foreign nationals who cannot be deported for fear of torture but not British citizens is blatantly discriminatory, it is clear that the Law Lords disagree witht he whole idea of arbitrary detention. Lord Nicholls of Birkenhead begins his judgement with the statement that

Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law

And to add further fuel to the fire in our own local dispute over the role of the Supreme Court, there are frequent side comments on the balance between courts and Parliament in Britain. Lord Nicholls again:

Parliament has charged the courts with a particular responsibility ... to check that legislation and ministerial decisions do not overlook the human rights of persons adversely affected.

In fulfilling that duty, the courts are abiding by the democratic will as expressed by the elected legislature - not undermining it.

And in a part directly applicible to the Zaoui case, Lord Nicholls thoroughly discredits the idea of the "three sided cell":

It is true that those detained may at any time walk away from their place of detention if they leave this country. Their prison it is said, has only three walls. But this freedom is more theoretical than real. This is demonstrated by the continuing presence in Belmarsh of most of those detained. They prefer to stay in prison rather than face the prospect of ill-treatment in any country willing to admit them.

It has always astonished me that politicians could claim that a "choice" between mere imprisonment and probable torture and death was any sort of choice at all, and it is good to see judges treating it with the disdain it deserves.

This decision represents a triumph for human rights and the rule of law in Britain. We can only hope that our own courts will see fit to follow suit.

A white christmas

It's midsummer - a mere week from the solstice - and the weather report is talking about snow in the South Island over the weekend. Snow. In December.

(If American readers are confused by this, they may wish to consult an atlas...)

Promoting democracy

In his columns in the Guardian, Timothy Garton Ash has argued strongly that the west should promote democracy whereever it can. Today, in light of Ukraine's "orange revolution", he lays down some ground rules for that project. Perhaps unsurprisingly, the first one is that

War is not justified simply to promote democracy. So, the Iraq war was wrong. [...] Using the promotion of democracy as the main justification for that war risks giving democracy a bad name.

Almost a corollary of this is the second rule: no spies. Both military force and covert government subversion in the name of democracy taint that ideal by turning it into a pretext for interested parties' geopolitical aims. Democracy becomes a means by which some other government can get what it wants (typically a more compliant local regime), rather than a means by which ordinary people can get what they want. Instead, Garton Ash suggests that assistance should be given by NGOs and other groups independent of state control, and that whereever possible it should be done in a transparent manner so that there can be no claim of secrecy or hidden agendas. He also suggests that it be "proportional", limited to promoting fair and democratic systems which allow citizens to exercise real choice, rather than the all too common attempts to undermine those choices in favour of a preferred candidate (as the US did with covert force in Iran and Chile, and as it is attempting to do with covert money in Iraq).

The underlying idea here is that expressed in his previous article: of helping people to find "their own path to freedom, in their own countries, in their own time... peacefully" - rather than imposing our version of freedom (and our policies) on them at gunpoint. Democracy grows from below, and while we can apply fertiliser, we must do so in a way which respects people's fundamental right to choose their own direction. Unfortunately, all too often the proponents of democracy forget this part, and act as if "democracy" means choosing the government they want...

Ex post facto criminalisation II

The Terrorism Suppression Amendment Bill (No 2) has now appeared on Knowledge Basket. The relevent section criminalising the financing of "non-designated terrorist organisations" is quite short:

(2A) A person commits an offence who, directly or indirectly, wilfully and without lawful justification or reasonable excuse, provides or collects funds intending that they benefit, or knowing that they will benefit, an entity that the person knows is an entity that carries out, or participates in the carrying out of, 1 or more terrorist acts.

The good point here is that the law requires knowledge that the organisation is involved with terrorism, so ignorance of this fact may be a defence. The problem is that there is still far too much uncertainty; whether a donation is or isn't illegal depends entirely on how broadly the idea of "participation" is interpreted, or whose version of events is believed. And those decisions will be made in secret, by analysts and prosecutors, and not publicised until charges are laid. How then can people avoid breaking the law if they do not know what is criminal and what is not?

As a concrete example, it's impossible to tell whether it would be illegal to donate to the Algerian Islamic Salvation Front (Ahmed Zaoui's political party) because we cannot be certain whether the government will accept that they are not involved in terrorism, or whether they will believe the propaganda from the Algerian government that they are a front for the GIA.

You can argue that it is better to be safe than sorry, and therefore avoid donating to groups where there is any doubt, but that simply highlights the problem: this law chills political activity with the threat of prosecution. That's something we should regard as highly suspect.

Since Solon, civilised countries have abided by the principle that the law should be open and public, so that people can know whether they are breaking it. This amendment raises the spectre of people being prosecuted for actions which they had no possible way of knowing were crimes, and which possibly only became criminal after the fact, when the SIS made up their minds. And that sort of ex post facto criminalisation is more a hallmark of a despotism than a free and open society.

Discarding natural justice

Pandering to the "hang 'em high" brigade has reached a new low, with Stephen Franks committing an unwitting act of self-parody by calling the government's proposed law on prisoner compensation "wussy". But Don Brash's reaction is worse. In the 70's, he took a lead role in organising funding for Amnesty International in New Zealand. Now he's suggesting that people be denied a right of reply in legal proceedings against them:

Dr Brash is also concerned by a clause that will allow some of our worst rapists and murderers to see, and respond to, any claim by their victims on court-ordered compensation for alleged 'mistreatment'.

"Not only will victims have to revisit some of their worst nightmares by jumping through legal hoops to get their case for compensation heard, their applications will be forwarded to the offender for a response.

"In other words, the man who brutally raped and attacked a woman in her own home will be given access to the victim's personal thoughts with a right to reply.

The problem here is a little thing called "natural justice", affirmed in our Bill of Rights Act and regarded by judges as the basis of our legal system. Part of this is the doctrine of audi alteram partem - literally, "hearing the other side". In order for our adversarial legal system to work, both sides must be able to effectively put their case. This means that hearings must be notified, relevant material must be disclosed, and the opposing party given a chance to respond to it. If this is not followed, the system simply fails to work; rather than the stronger argument winning, victory goes to whoever the deck is stacked in favour of.

This principle of hearing the other side is arguably what lies at the heart of the Ahmed Zaoui case. Here we have a man whose fate will be decided by secret evidence which he is forbidden to hear, and which therefore he will have no chance to effectively rebut. Don Brash has quite rightly voiced his objection to the unfairness of this procedure, but seems quite happy to apply similar conditions to criminals facing claims for compensation from their victims. But then, hasn't he already more than shown his willingness to ignore consistency (and simple human decency) for political advantage?

Political crimes

The man responsible for the axe attack against the Prime Minister's electorate office has been charged not just with criminal damage, but also with "seditious conspiracy". For a taste of the dubiousness of this law, it was last used in 1914, to prosecute conscientious objectors who refused to fight and die in a struggle between two German monarchs.

"Seditious conspiracy" is an explicitly political crime, criminalising people gathering or planning to "excite disaffection against... the Government" or encouraging "violence, lawlessness, or disorder" in the abstract. It is a ridiculous and archaic law, as can be seen from its underlying assumptions: "exciting disaffection" is a crime, so by implication we should all feel affection towards our rulers. But since when the fuck have we been expected to love the government?!? And why, other than sheer naked self-interest on behalf of our rulers, should it be any sort of crime to encourage people to be discontented or resentful towards them?

This is nothing more than a holdover from the paternal attitudes of feudalism. It is fundamentally incompatible with modern conceptions of relations between citizens and the state. It is also grossly contrary to the affirmation of the freedoms of conscience, expression and association in the Bill of Rights Act. Worse, it contradicts basic ideas of justice; whether a crime is actually committed is entirely a matter of interpretation, one man's "exciting disaffection" being another man's political protest, thus giving the authorities wide leeway to punish whoever they please. For all these reasons, it should be stricken from our books.

Sticking an axe through a window is a crime, and can be prosecuted under laws against property damage. It should make no difference who the window belongs to, or what political opinions the attacker espouses or propagates. Otherwise, we open the door for the police to engage in political persecution (which is exactly what they are doing here). It's a timely reminder of the danger of letting such archaic laws survive; their existence is an invitation to use, which is why they must be repealed.

And OTOH, this is also an opportunity. It's hard to imagine the current law surviving any challenge under the Bill of Rights Act, and if one is made, it is likely to be gutted in the same fashion as the law against flag-burning. So the police may be doing us all a favour after all.

More justice

Hot on the heels of the Pinochet indictement is the news that the Iraqi regime will be putting top Ba'athists on trial. I'm suspicious about the timing - designed to garner maximum publicity in the runup to the January 30th elections - but cannot do anything but welcome the news. To the extent that these people have committed or been complicit in crimes against humanity (and not all may have been - the case against Chemical Ali is pretty open and shut, but that against former Deputy PM Tariq Aziz may be less clear), they should be tried and sentenced by proper process of law in an open court for all to see. In order for this to be seen as anything more than "victor's justice", it must be conducted according to the highest standards.

War crimes will only end when potential war criminals fear punishment; that will only happen when we end impunity. By punishing Saddam's henchmen, Iraq will be sending a message to tyrants everywhere that one day, they too may be held accountable for their actions.

One law for all

After hearing certain MPs harp on all year about "one law for all", I'm looking forward to their expressions of outrage to the news that Maori face longer criminal sentences than non-Maori:

Corrections introduced its "risk of reconviction and risk of imprisonment" system in 2001.

All offenders who are found guilty or plead guilty are assessed under it for their pre-sentence probation report to gauge their risk of reoffending.

Answers to about 90 criteria are fed into a computer to produce a score that grades risks. But the system as introduced automatically gave a higher score to offenders who gave Maori as their ethnicity than it did to a non-Maori offender of similar background who committed a similar crime.

Unlike previous complaints of "Maori privilege" (which tend to be need in disguise, or in some cases simply fabricated), this actually is a serious violation of the principle of equality before the law. You don't get anything more basic than the idea that the scale of someone's punishment should not depend on their race or cultural background. But instead, it seems that Gerry Brownlee and Don Brash would rather worry about decile-funding in schools. That speaks volumes about what they think "one law for all" is really about...