More justice for Abu Ghraib

The US Army has charged another person over the torture at Abu Ghraib. Lieutenant Colonel Steven Jordan, the commanding officer of Abu Ghraib's interrogators, is charged with cruelty, maltreatment, and dereliction of duty for subjecting prisoners to "forced nudity and intimidation by military working dogs". He also faces various charges for attempting to interfere with subsequent investigations and cover up evidence of wrong-doing by himself and his subordinates. If this goes to trial, he will become the highest-ranking officer court-martialed over torture - but at the same time we shouldn't celebrate prematurely. The US Army has a poor record when it comes to holding their own to account, and I think its highly likely that this trend will continue. We may very well see Jordan convicted, and then "punished" with a nominal fine for allowing acts like this and this to occur under his command.

Still, its good that he has at least been charged. Now, if only the US Department of Justice would do the same for Mark Swanner and Daniel Johnson...

The mother of all U-turns

In the 2005 election, National campaigned on an anti-Maori, anti-Treaty platform, promising to eliminate even the pallid rights Maori had gained over the foreshore and seabed, remove Treaty clauses from legislation, eliminate the Maori seats, and generally attempt to roll back the growing recognition and influence Maori have won for themselves over the past two decades. Now, they look set to make the mother of all U-turns, with Gerry Brownlee expected to urge National's Northern regional conference to reopen debate:

He is expected to urge National to debate its stance on the Treaty and the constitution, including the recommendations of the United Nations' Special Rapporteur Rodolfo Stavenhagen.

They include issues that National opposes, such as making Waitangi Tribunal findings binding, entrenching MMP and the Treaty, and using iwi and hapu to provide customary self governance.

The reason for this sudden reversal is simple: the Maori Party. Currently they effectively hold the balance of power in Parliament, and with the number of Maori seats expected to increase, that power looks likely to grow. Currently National's policies effectively rule out any cooperation - it is difficult to work together when your policies are diametrically opposed - so if National wants any hope of power at the next election, it needs to change. Its a great example of what Maori can achieve by standing up for themselves electorally - but it will be amusing to see how it goes down amongst National's redneck supporters.

From a left-wing perspective this is a welcome move - and not just because National's policies were unconscionable. It will also allow Labour to cease its stupid pandering to rednecks, and return to openly advocating the values it is supposed to adhere to.

The size of Parliament

In 1986, the report of the Royal Commission on the Electoral System, Towards a Better Democracy, recommended numerous changes to our electoral system, including a shift to a Mixed-Member Proportional system and an increase in the number of MPs from 97 to 120. With Barbara Stewart's Electoral (Reduction in Number of Members of Parliament) Amendment Bill attempting to roll back the latter change, I thought it would be worthwhile to review their reasoning.

The Royal Commission started by asking the basic question: what do MPs do? They identified four core functions of elected representatives:

1. representing their constituents;
2. representing the nation as a whole;
3. providing an effective government; and
4. providing an effective legislature.

In the Royal Commission's assessment, MPs generally performed the first function very well, being highly accessible and fairly responsive to their constituents, and increasing their number wasn't likely to result in any improvement. Neither would it improve the second function; while Parliament was unrepresentative (consisting primarily of drunk old white men), this was a problem with the electoral system itself rather than the number of MPs. With regards to the third function, they noted that the increasing complexity of government had led to a significant increase in the size of the executive (from 7 members in 1900 to 20 in 1986), and that this trend was likely to continue. At the same time, the size of the available talent pool from which to draw those Ministers had remained relatively stable, and that as first-term MPs were not normally appointed as Ministers, this had led to little choice about who should be in Cabinet. Ministers were basically being appointed on the basis of length of service, to the extent that three-quarters of MPs who survived more than a term and whose party won office could expect to receive a Ministerial position. A larger House would lead to a larger caucus, and hence a wider pool of talent.

As for the fourth function, the Commission felt that a larger House would weaken the influence of Cabinet over caucus, and allow back-benchers to have a greater say. More importantly, it would strengthen select committees, allowing them to be expanded in both number and size (in 1986 there were thirteen subject committees with an average membership of five), develop a greater degree of specialist knowledge, and devote more time to scrutinising legislation. As a minor point, it was also suggested that a larger House would improve the quality of Parliamentary debate, by reducing the average number of speaking calls per MP and allowing greater specialisation.

Having made the case for a larger House, the Commission considered the question of how large it should be. To gain all the benefits they hoped for - 30 Ministers, more and larger committees - they thought they would need 140 MPs and a government caucus of about 70. However, they recognised this would face stiff public opposition, and so settled for recommending 120. They expected the extra 23 MPs to cost around $3.3 million (in 1986 dollars).

Assessing these arguments with the benefit of hindsight, it is clear that things haven't quite worked out as the Royal Commission expected. While the 1996 and 1999 governments enjoyed an expanded talent pool from which to select their Ministers, the recent trend towards minority government has narrowed it again, so that in the present government it is no larger than it was under FPP. This has also prevented government backbenchers from having greater influence - though we have very definitely seen this trend in a few of the minor parties, with both the Greens and ACT (before the last election) having very active caucuses. And of course Parliamentary debate is the same as it ever was. The one area the Royal Commission got it right was on select committees; while they haven't increased in number, the average membership has doubled to nine or eleven (they were hoping for seven), they are devoting more time to their inquiries, and their reports generally tend to carry more weight than they used to. In some cases - as with the recent Land Transport Amendment Act - a committee goes off the rails and suggests changes which are frankly stupid, but generally the higher scrutiny has resulted in improved legislation, as well as vastly better oversight of government in general. I think this has been a very worthwhile improvement, and worth every penny.

However, while most of the Royal Commission's arguments turned out to be wrong, they work very well in reverse as arguments against a smaller Parliament. Fewer MPs and smaller government caucuses would shrink the Ministerial talent pool (even moreso in a minority government), and given the present size of Cabinet (itself dictated by the number of functions government performs), it would dramatically reduce the influence of backbenchers over their Cabinet colleagues. And of course it would roll back all the progress we have seen on Select Committees and accountability to Parliament. For these reasons (and those stated in my draft submission), I think any reduction in the number of MPs is a bad idea, and Stewart's bill should be opposed.

Petty politics

Jane Clifton's column in this week's Listener comments on the current dominance of political news by stories that can only be described as petty, pointing out that

At holiday times, when most MPs dash overseas or try to restore normal relations with the strangers they call their families, the news diet gets especially lean, so mean and petty stories come to the fore.

Clifton focuses on the recent stories about army horoscopes and prison landscaping, but this week's allegations from National that Te Papa is engaging in "political propaganda" because an interactive game about immigrant experiences uses the Labour Party (along with the Plunket Society, Catholic church, and "the regulars at the local pub") as an example of a social group they can join falls squarely into that category. But perhaps the pettiest was on the TV news alst night: Simon Power releasing statistics on the number of traffic accidents in ministerial self-drive cars, and using them to claim that Harry Duynhovem shouldn't be Minister of traffic safety. Duynhoven's car had had three accidents, all of them minor, and he'd been responsible for one of them: he hit a wall at low speed and caused $400 of damage (which is about the price of a single headlight). So, we have National claiming that someone can't be a Minister because they had a parking accident. If that's not petty, I don't know what is...

"A widespread regular practice"

The European Parliament has released a preliminary report into its investigation into allegations that the US was running a new gulag of secret prisons in Eastern Europe and conducting rendition flights through European territory. Their conclusion? That human rights abuses were a widespread regular practice in the war on terror - and that the majority of European governments were almost certainly complicit in them.

The report found that over a thousand undeclared CIA flights had passed through Europe, and that at least some of these flights could be tied to cases of rendition - for example, the cases of Khalid al-Masri (kidnapped and rendered from Macedonia for having a "suspicious name") and Osama Mustafa Hassan (an actual terrorism suspect whose kidnap and rendition from Italy caused the collapse of a major anti-terrorism investigation - and the issuing of arrest warrants for the CIA bodysnatchers involved). It also found that it was unlikely that European governments were ignorant of what was going on - which would place them in violation of their commitments under the ECHR. Europe takes torture rather more seriously than the US (perhaps because they remember the Gestapo), and assisting in any way with transporting someone to be tortured - even by providing a fuelling stop - would place an EU country in violation of its human rights obligations. As for what action will be taken, it will be interesting to see what the European Parliament decides to do...

the next stage of the investigation will focus on secret prisons, and MEPs are scheduled to visit Romania and Poland later this year to get some answers.

New Fisk

United States of Israel?

Immigration Act Review II: Exclusion and Expulsion

This is the second post in a series on the government's Immigration Act Review Discussion paper [PDF]. The review aims to completely rewrite the Act to ensure a "firm, fair, and fast" immigration system; however many of the proposals seem to be emphasise the "firm" and "fast" aspects at the expense of fairness.

The first post in this series dealt with Chapter 5: Decision-making. This post will cover Chapter 6: Exclusion and Expulsion. As with Chapter 5, it is divided into three sections.

The first section covers "exclusion" - being forbidden to enter New Zealand. At present, the criteria for this are listed in s7 of the Immigration Act 1987, and in immigration policy. The reasons in the former include criminal offending, previous deportation, or the Minister thinking you are a Bad Person (a terrorist, potential criminal, or a "danger to the security or public order of New Zealand"); the latter include health, character, and failing to entry requirements laid out in policy. The key aim of this section is to see health and character requirements that are currently part of policy elevated to law - vastly reducing the scope for judicial review of those criteria. If accompanying provisions around exclusion are maintained, it would also remove any requirement to provide a reason for a decision - which is a recipe for abuse, particularly where "character" is concerned.

In addition to raising questions of oversight and accountability, there's also a question of proportionality here. It is one thing to refuse residency on the grounds of health or character, but its quite another to refuse entry. Without pretending to agree with the current use of these criteria, we have a far stronger interest in who will be living with us in the long-term than we do in who takes a holiday here.

Reading this section, it is difficult to escape the conclusion that the desire to entrench a character requirement in law is a reaction to recent controversial (would-be) visitors such as David Irving and Philip Nitschke, where immigration law has not seemed to offer the tools to deny entry to someone solely on the grounds that the government didn't like them. But the response - a catch-all "we don't need a reason" clause to catch anyone not otherwise excluded - is a licence for government abuse, not to mention arbitrary decision-making by officials. It raises significant questions of freedom of speech (which remember includes the freedom of New Zealanders to receive information as well as the freedom to impart it), and of discrimination or even victimisation on political grounds. This is simply not a tool we should be handing the government, and not a path we should be going down.

The second section deals with expulsion - or what is currently known as deportation or removal. There are two separate processes for this (hence the two names), as well as two more for revoking temporary or permanent permits. The aim is to replace these with a single, streamlined process. There would be a single list of criteria, covering everything from residence fraud to "national security", and meeting any of them would introduce automatic liability for expulsion (it is unclear who exactly decides whether the criteria are met - but I have a sneaking suspicion its nameless, faceless officials in secret again). The streamlining would come from removing the Minister from the loop (currently they must personally revoke residency permits, and approve all deportations of permanent residents who have been convicted of serious crimes), and (of course) limiting judicial oversight and avenues of appeal (fairness being seen as a barrier to chucking people out of the country). Left unstated in all of this is the fact that, in light of the proposals of Chapter 12, "automatic liability for expulsion" means automatic incarceration at the pleasure of the Immigration Service, again with little judicial oversight or protection.

I have no problem with streamlining processes, but again it seems that the changes are being driven by administrative convenience at the expense of fairness, and that the real rights and interests of migrants are being ignored. One particularly noxious example of this is that the proposals would dramatically erode the status of permanent residency. Currently there are strong protections in place to make it more difficult to eject permanent residents, on the basis that they have a stronger right and interest in remaining in New Zealand than overstaying tourists. The review recognises this very point in the chapter on appeals - but here, those stronger interests are simply ignored in favour of being able to kick people out of the country as quickly and easily as possible.

The third section deals with penalties for expulsion, and tweaks the current five year ban on re-entry to introduce graduated penalties, with no penalty for leaving voluntarily. This actually looks quite good, and is certainly better than the current system.

Next: Chapter 12: Detention

An obvious step

The government has announced its latest changes to the welfare system: providing employment assistance and training to all beneficiaries rather than just those on the unemployment benefit. It's an obvious step, and one which demonstrates the clear difference in approaches to welfare policy between the two main parties. National favours coercive and punitive solutions, seeing beneficiaries as malingerers who need to be forced into work and punished for not doing so. By contrast, Labour recognises something that National doesn't: that most beneficiaries actually want to work (people don't actually like being poor, strangely) and that all they need is a bit of help. Providing training, assistance with childcare, transport and establishment costs, proper medical care if they are sick, and of course help in finding work that matches their circumstances results in people moving off benefits faster than if they are simply assessed and abandoned - and without causing the misery and suffering of National's financial sticks.

By all accounts this approach has been very successful in trials, with over 90% voluntary uptake and 20% of participants able to be channelled towards full- or part-time work. But one thing you do have to ask is why the hell they weren't doing this already?

One way of fixing it

Readers interested in climate change will know that transport emissions are a key part of our current Kyoto problem. Transport is responsible for around 18% of total CO₂ emissions - and emissions from the sector are growing at around 4% a year. Last week, when browsing the Ministry of Economic Development's Energy Data File, I was wondering whether the current sustained high petrol prices would have any effect on this trend. The answer, it seems, is "yes". With petrol hitting $1.70.9 a liter, consumption growth has basically disappeared:

Despite the soaring prices, Kiwis have yet to desert their cars in droves. An oil industry insider said industry-wide sales figures for the year to March showed little change from the previous 12-month period.

This represents a slight decline as overall consumption usually rises 1 per cent to 2 per cent a year.

(Emphasis added)

We'll have to wait a couple of years for people to do the figures to see if this is reflected in CO₂ emissions, but it looks good - and the longer prices remain high, the more effect it will have. While petrol usage is notoriously "sticky" - short-term rises have little effect - in the longer term high prices do encourage people to buy more efficient cars or shift to public transport. Which is exactly what needs to happen if we are to get our emissions under control.

Hominid rights in Spain

The Great Ape Project is a campaign to extend basic human rights and legal protection to the Great Apes (Chimpanzees, Bonobos, Gorillas, and Orangutans) on the basis that they generally share the morally significant characteristic of personhood. While there's obviously individual variation, the average Great Ape has around the same mental abilities as a human child. We extend at least partial legal recognition and protection to the latter, and to humans a lot further down the personhood spectrum (newborn babies and the severely mentally disabled, for example) - so why not to apes? So far, the GAP has succeeded in getting bans on hominid research in several countries, but now they look to be on the verge of a real success, with Spain's government announcing its intention to legislate for hominid rights:

The Spanish Socialist Party will introduce a bill in the Congress of Deputies calling for "the immediate inclusion of (simians) in the category of persons, and that they be given the moral and legal protection that currently are only enjoyed by human beings." The PSOE's justification is that humans share 98.4% of our genes with chimpanzees, 97.7% with gorillas, and 96.4% with orangutans.

According to another article, the bill will bar the enslaving of Great Apes, as well as cruel treatment. So, it's not complete legal equality (and I wouldn't expect it to be), but rather a recognition of the basic rights to life, liberty, and freedom from torture or cruel and unusual treatment.

Proof by example

Anyone in need of proof that our sedition law is dangerous and should be repealed need go no further than our local monarchist. That's right - he's suggesting prosecuting those who do not share his peculiar fixation with the Queen. Not that he's the only one - last year, the Monarchist League made exactly the same suggestion. Such prosecutions would of course fall foul of the "good faith" defence, not to mention the affirmation of freedom of expression in the Bill of Rights Act - but I don't think these people have come to terms with the Bill of Rights 1688 (which established Parliamentary rule in England), let alone our modern law of the same name...

Parker exonerated

The Companies Office has completed their investigation of the allegations against David Parker, and the Crown Solicitor has concluded that there is no basis for prosecution. In the case of the key allegation - that Parker falsely stated in several annual returns for a company that he had gained the consent of all shareholders for the company not to be audited - the Crown Solicitor concludes that it cannot be proved even to a prima facie level, and that everything was above board. The three shareholders had or almost certainly had consented to the first three returns, and following the bankruptcy of Parker's business partner Russell Hyslop, the Official Assignee had consented and then eventually waived their future rights. It is unclear whether this waiver was actually legally effective, but it is sufficient to let Parker off the hook; in order to be a crime, a false or misleading statement must be known to be false or misleading.

A subsidiary invesigation of two other companies found a number of minor paperwork offences for which no-one is ever prosecuted and which are normally settled by paying a late fee. These were not considered sufficiently serious to justify prosecution.

Down in the sewer they are already muttering darkly and suggesting that this is another example of a Labour Minister being let off - a line surprisingly echoed by DPF - but having actually read the report, this isn't a refusal to prosecute, it's exoneration. I expect Parker to be back in Cabinet ASAP, and given these findings, I don't think there's any impediment to him resuming his former duties as Attorney-General.

On the minus side, this means I just posted off an OIA request to the wrong Minister. Bugger.

Update: I see ACT is also wallowing in the sewer, claiming that there are now "two laws" and that "business laws now mean nothing in New Zealand if you're a Minister in Helen Clark's Government". To the contrary - two laws would be persuing a groundless prosecution or prosecuting for offences that no-one else is ever prosecuted for, simply because they are a government Minister.

Immigration Act Review: Other Voices

I'll have my next post on the government's Immigration Act Review out sometime this afternoon, but in the meantime other people have weighed in on the topic. Over on Observationz, Rich takes issue with the proposed purpose clause, which lists New Zealand's interests in controlling immigration as being

1. maintaining the safety and security of New Zealand
2. generating sustainable economic growth
3. establishing strong communities
4. fulfilling New Zealand’s role as a good international citizen, and
5. promoting international cooperation.

He particularly takes issue with 1, which seems to be interpreted rather broadly to conflate the finacial risk of accepting people with health problems with national security, and 3, which is outright social engineering and pandering to creps like Winston. Instead he suggestes replacing the former with a simpler "prevention of crimes and hostile acts", and adding the goal of "protecting the rights and interests of migrants" - something which tends to be conspicuously ignored in these debates.

Meanwhile, Tze Ming has an overview of her objections so far which cuts right to the chase:

The stated third objective of the Immigration Act review is to "establish fair, firm and fast decision-making processes." This objective supports a balance between fairness, procedural integrity, and efficiency. However, numerous proposals in the discussion paper are unbalanced away from fairness and in favour of fast decision-making and 'firmness' of state sovereignty (rather than of procedural integrity).

Shifting the balance in this way will give us an immigration system which is arbitrary, unjust, and unaccountable. It would also be deeply at odds with New Zealand values. While being able to reject applications on the basis of secret information or without having to provide justification would no doubt make things easier for immigration officials, I don't think mere administrative convenience should be elevated to a central goal of policymaking.

Tze Ming also hooks into the proposals to routinely use secret "evidence" (which seems to ignore the lessons of the Zaoui case), allow immigration officers to arrest, detain, and search without warrant, and undermine the status of permanant residents by treating them the same as temporary permit holders. It's a good summary of the core problems, and well worth reading.

Unexpected

Solomon Islands Prime Minister Snyder Rini has resigned, after learning that MPs would cross the floor to vote against him in today's confidence vote. This morning, the Herald was reporting that the numbers had tilted stronly in his favour after RAMSI's arrest of two opposition MPs; I guess the rest of the House didn't like the prospect of a Prime Minister gaining office simply because his opposition was in jail...

It will be interesting to see what happens next, and whether the current opposition will be able to agree on a candidate themselves, or whether the whole cycle will start over.

Restarting the nuclear arms race

When the Cold War ended fifteen years ago, we all felt that the world had become a safer place. Tensions lowered, nuclear arsenals were reduced, and the threat of nuclear war and Mutually Assured Destruction receded. In the time since, an economically strapped Russia has allowed its nuclear forces to decay, while the US pressed on with further upgrades to its weapons systems - and now this threatens to cause problems. In a pair of articles in Foreign Affairs (The Rise of U.S. Nuclear Primacy) and International Security (The End of MAD? [PDF]), Keir Lieber and Daryl Press warn that the imbalance is now so great as to allow the US to launch a disabling nuclear first strike with no fear of retaliation. And they warn that countries such as Russia and China could respond to this situation by beginning a new nuclear arms race.

The Russians, at least, seem to have got the message. They're currently deciding exactly what to do about it, but it seems certain that they will embark on a nuclear modernisation program of their own to reduce their perceived vulnerability. Which will encourage the US to expand its forces to maintain supremacy, which will in turn require the Russians to have even more missiles. It's not Dreadnaughts, but its the same stupid game: an arms race. And the effect will be to destabilise international relations at precisely the time we thought that such disputes between large countries were over. The only way out of it is by a massive, mutual reduction in weaponry through a new arms control treaty - but I can't really see the US agreeing to surrender its advantage anytime soon.

People power in Nepal

Convinced that the source of State Authority and Sovereignty of the Kingdom of Nepal is inherent in the people of Nepal and cognizant of the spirit of the ongoing people’s movement as well as to resolve the on-going violent conflict and other problems facing the country according to the road map of the agitating Seven Party Alliance, we, through this Proclamation, reinstate the House of Representatives which was dissolved on 22 May 2002 on the advice of the then Prime Minister in accordance with the Constitution of the Kingdom of Nepal-1990...

(Unofficial translation courtesy of United we Blog! for a Democratic Nepal).

The reinstatement of Parliament and representative government was one of the key demands of Nepal's Seven Party Alliance, so they seem to have won. But it wasn't all they were after; they are also seeking changes to the constitution to curtail the role of the king and put power firmly in the hands of elected government - and so far there seem to have been no concessions on that front. But the real question is whether after so much bloodshed and a clear demonstration that the king values his own status more than the lives of his people, this will really be enough any more.

New non-kiwi blog

Via Bloggreen: Camp Sovereignty, the Aboriginal protest camp originally established for the Melbourne Commonwealth Games, now has its own website and blog.

Nervous

Like DPF, the news that the Regional Assistance Mission to the Solomon Islands (which includes New Zealand troops and police) has arrested two opposition MPs for their role in last week's riots is making me nervous. It is one thing to be a neutral guarantor of law and order - but regardless of the strength of the case against these two men, it runs the risk of being seen to be interfering in local politics. Just to ask the obvious questions, what happens if they can't vote in Thursday's confidence vote? What happens if the new government wins that motion only because its opponents were in jail? Wouldn't that call the basic legitimacy of both the Solomon Islands government and our mission there into question?

When I posted about this last week, I supported New Zealand's presence in the Solomons on the basis that the mission was humanitarian and at the request of the Solomon Islands government. But I also noted that it could only be supported as long as RAMSI stayed a neutral guarantor of law and order. If they ceased to be neutral, and began to favour (or were seen to favour) one faction over another, then it would be time to come home. If the government survives on Thursday because we have jailed its opponents, then I think that that point may have already arrived...

A waste of time?

A year ago tomorrow, New Zealand celebrated its first civil unions. In that time, 458 couples have got hitched, compared with around 20,000 marriages. Predictably, conservatives are focusing on the disparity of numbers, proclaiming that the entire exercise was "a waste of time" and not worth the emotion invested into it. An obvious response is to agree and say that clearly they got worked up over nothing - but somehow I don't think that's what they mean. Instead they're saying that we shouldn't have bothered passing a law just so these 916 people could have their relationships legally recognised - that the fundamental right to equality of those 916 people simply isn't important. I think the moral indefenceability of that argument ought to be apparent to all. These are fundamental rights we are talking about here, and even one person being denied such rights is one too many - a position conservatives would be swift to proclaim if it was their rights that were not recognised.

But Bill English isn't entirely wrong in calling civil unions "political symbolism". The act of ensuring those fundamental rights for same-sex couples is also symbolic of our commitment to equality and a society from which no-one is excluded - values conservatives have always been implacably opposed to.

New Fisk

All change in the Temple of Truth

Telecom, broadband and privacy

Russell is talking about broadband again today, and in the process asks the following question:

how come getting a DSL connection on via your third-party ISP takes two weeks - when the same task takes two days if your ISP is Xtra?

More importantly, how come getting a third-party connection results in your suddenly receiving personalised junk-mail from Telecom pimping Xtra's broadband services? Isn't this using information given to them for one purpose - getting a broadband connection up and running - for another, in violation of the Privacy Act? Or do they have some special exemption I don't know about?

Cats in boxes

In 1935, Erwin Schrodinger proposed the now infamous thought-experiment known as Schrodinger's cat. A cat is placed in a sealed box with some way of killing it attached to a quantum process with a 50% chance of triggering it. The cat is then theoretically neither alive nor dead, but in some indeterminate 50 - 50 quantum state which will only be determined when the box is opened and the wave function collapsed. And ever since, cats have been afraid to get into sealed boxes.

What I can't understand is why my cats are afraid of getting into their cat cages to go to the vet. They have a grill door on them, and holes in the side. They can see out, and I can see in. Surely they understand that that means there's no danger of being Schrodingered?

Dunne slams democracy

True to form, former Rogernome Peter Dunne has slammed the EPMU's "bully-boy tactics", declaring

This is not France where industrial legislation is decided by street rioting

Indeed it isn't - but then, that isn't what the EPMU have proposed. What they are planning are protest marches and demonstrations - and that is not "bully boy tactics", but democracy in action.

Learning from the French

The EPMU seem to have learned from the French, and have put Wayne Mapp "on notice" that they will begin a public campaign of protests in 90 days unless he withdraws his Employment Relations (Probationary Employment) Amendment Bill. Needless to say, I think this is a great idea. Mapp is of course outraged, and refuses to be "held to ransom by threats" - but its not really him that the protest is aimed at. The bill's support is tenuous - it only passed its first reading because of the support of the Maori Party - and a strong show of public support is exactly what is needed to persuade them to change their vote.

It is also interesting that it is the EPMU which is leading on this. Traditionally, they've favoured cooperation (some would say "collaboration") over confrontation. But it seems the recent French victory over the CPE has reminded them of the potential power of protest, and the tight political environment of its necessity. The government's lack of a legislative majority means that current employment law (which recognises the inherant imbalance of power between employer and employee) is under threat; if we want it to stay, then we have to speak up to defend it.

"Labour's dog"

Despite being on the left and interested in Green issues, I'm not that concerned with the Green Party co-leadership election. Either of the two leading candidates Nandor Tanczos and Russell Norman would be perfectly good at the job, and despite Nandor's publication of a paper on the subject of "why the Greens are not a left-wing party" (which I would dearly love to see a copy of, BTW - email here), he's been a reliable voice for social justice as well as on environmental issues. As Vernon Small noted in The Dominion-Post last week, the differences between the candidates aren't really that great, despite the difference in rhetoric, and so it will really be a question of tone and leadership style more than anything else.

What does interest me is Nandor's comment that the Greens should stop being "Labour's dog" - by which, he presumably means stop automatically supporting Labour in order to get some actual leverage rather than being continually sidelined. I'm sure this sounds good to people like David Farrar (who continually bemoans the "fact" that they are not a "genuine Green party" - i.e. they refuse to remain myopically fixed on giant snails and instead look at the big picture of what is driving their destruction) - but I don't think it stacks up very well in practice. One "problem" is that the Greens are fundamentally a constructive party rather than an oppositionist one, and will vote for imperfect progress now (while pointing out that it is imperfect and demanding better) rather than refusing anything short of their desired policy. Currently Labour is the chief beneficiary of this - but I also think National will benefit from it next time they're in government, to the extent that they put forward legislation the Greens see as "progressive". And while this leads to the Greens being taken for granted legislatively (to the extent that they can be blackmailed into voting for frankly regressive legislation in order to prevent it from being worse), the constructive approach is deeply rooted, and one of the things I most admire in the party.

The elephant in the room, though - and the reason why the constructive approach seems to be a "problem" - is that Labour and the Greens simply have too much in common to be anything other than natural allies. Yes, they're neither left enough nor green enough, and so unsatisfactory no matter what the balance between the two ideals - but they do at least show some commitment to both. By contrast, National fails on the green axis alone. While in the past they have advanced environmental goals, at present they are a party committed to gutting the RMA, burning coal in order to provide environmentally subsidised "cheap" electricity, allowing mining in conservation areas, ignoring the problem of global warming, and generally allowing business to run rampant and ignore the full cost of their activities. Providing confidence and supply to such a party would seem to be a gross betrayal of Green ideals.

In conclusion, the Greens can't help but be "Labour's dog", and absent a significant change of direction from National, they seem likely to remain so for the foreseeable future.

Update: A thoughtful person has helpfully emailed me a copy of Nandor's paper.

Victory in Nepal?

After two weeks of protests and fourteen deaths, Nepal's self-proclaimed absolute monarch has seemingly backed down, saying that he will return power to the people of Nepal and inviting the opposition to nominate a Prime Minister. But while significant, the "backdown" was far less than what the opposition is seeking - there was no mention of elections or a constituent assembly, or a limitation of the King's role - and so it seems the protests will go on.

At this stage, there seems to be little King Gyanendra can do to retain power. His decision to murder his own people rather than restore democracy has caused a sea-change in public opinion; as the number of deaths has increased, the slogans being chanted have gone from "restore democracy" to "down with the monarchy" to "death to the king". Unless there's a total backdown and a retirement to the status of a mere figurehead, we may very well see Gyanendra having to flee his palace in a helicopter.

Immigration Act Review I: Decision-making

This is the first post in what will hopefully become a series about the government's Immigration Act Review Discussion paper [PDF]. The review aims to rewrite the Act from the ground up so it is clear and easy to understand, complies with our international obligations, and has "fair, firm, and fast" decision-making processes. However, the emphasis seems very much on the "firm" and "fast" at the expense of fairness, to the extent that the review has been called a power-grab by officials aimed at reducing accountability and oversight of their decisions. Excellent blog-fodder, in other words, and something well worth submitting on.

I've decided to start in the middle, with Chapter 5 ("Decision-making") because it’s where it begins to get interesting. I may eventually work my way back to chapters 3 and 4, but only after I've gone through most of the rest of the document first.

The first part of the chapter is devoted to the question of who should be making individual immigration decisions. Currently, this power is in the hands of the Minister, who then delegates it to officials. While in practice almost all decisions are made by those officials, the Minister has the power to intervene in any decision - and is therefore frequently asked to do so, particularly in granting exceptions to residence policy. The key suggestion is for this latter power to be delegated to senior officials, so that (for example) they can allow skilled people who fail to meet the age limit for residency to stay here. I don't have a problem with this particular delegation (its not as if they'd be allowing officials to revoke residence permits, for example) - but I do have a problem with the attempt to couple it to "administrative improvements" intended to severely curtail access to the Minister on purely procedural grounds. As the review points out, the ability for the Minister to intervene is an important safety valve which mitigates against the "unintended consequences of strictly applying rules and criteria". Another way of putting it is that it is the right of ultimate appeal over the heads of officials. Restricting that right of appeal will mean that people in perverse and Kafkaesque situations - people like Dean Kenny, for example - will be forced to incur enormous expense and frustration in order to jump through enough hoops to finally gain access to the Minister and have their situation resolved. More likely, though, they'll simply give up in frustration - which is, I suspect, the intention.

The second part of the chapter asks when immigration applicants should be given reasons for departmental decisions, or a chance to respond to "potentially prejudicial information" which may affect their cases. Currently, the Immigration Act and various other statutes require applicants within New Zealand (but not offshore) to be given reasons why their application is declined. A key question raised is whether reasons for decisions should be provided to offshore applicants, and the answer is "of course they should" - natural justice demands it. That same principle applies to the question of potentially prejudicial information, and currently applicants are given a chance to respond to such information before any decision in made. However, the department doesn't like this, and wants to be able to reject applications on the basis of classified information without having to say why or giving the applicant any chance to respond (this is covered fully in Chapter 9). This is an atrocity against the principle of natural justice, and makes a mockery of their claim that the review is intended to ensure that decision-making is "fair". Unfortunately, it looks as if the decision has already been made; the assumption in this section is that such information will be used, and not shared. So much for "discussion".

The third part of the chapter deals with two issues: electronic decision-making and third-party decision-making. The first seems relatively uncontentious, and the aim is to provide for its implementation in the future when the technological options become clearer, rather than implementing it now. The second would see tertiary institutions and employers making "some" immigration decisions - something which is simply insane. These people have no effective quality controls, are not bound by the checks and balances (the BORA, the Ombudsman) governing government departments, and are likely to make decisions based on their own interests in, for example, maximising the number of fee-paying foreign students they can get, rather than on the criteria used by the government.

Next: Chapter 6 - Exclusion and Expulsion

Desperation

The US is now so desperate for troops to die for Haliburton and provide a fig-leaf of international respectability in Iraq that they asked Cambodia to contribute. Cambodia's answer? "No" - and in no uncertain terms:

"We will not send our armed forces to Iraq because the issue there is not in the hands of the United Nations," Hun Sen told reporters.

But even if the UN were in command, Cambodia would still not send troops to Iraq or Afghanistan, he said following a meeting last week with US Ambassador Joseph A Mussomeli, who asked him to consider sending troops.

"Every day we have seen people get killed and taken hostage" in Iraq, Hun Sen said.

"So I will not let my people, who went through 30 years of suffering from war, see more horrible days of separation and suffering from the continued terrorist activities of decapitating hostages in Iraq," he said.

I guess unilateralism has a price after all...

So much for the First Amendment

A Secret Service officer covers the mouth of Wenyi Wang, 47, as she is escorted from the camera stand after she disrupted the speech of Chinese President Hu Jintao, not pictured, during an arrival ceremony with President Bush on the South Lawn of the White House, Thursday, April 20, 2006, in Washington.

(Image and caption stolen from the Associated Press).

Wang has since been charged with disorderly conduct and - get this - "intimidating a foreign official". Her "intimidation"? Protesting China's appalling human rights record and its persecution of the Falun Gong movement. And for this, she is facing a fine and up to six months imprisonment. So much for the First Amendment...

But there are two other things which are really galling: first, that the Secret Service saw fit to physically silence her as she was being dragged off, so their important guest's sensitive ears wouldn't be sullied with criticism. And secondly, that Bush apologised to Hu. The only apology he should be giving is "sorry, we have freedom of speech in this country".

Torture in Timor-Leste

Six years ago, New Zealand was part of a multinational peacekeeping force in Timor-Leste. Part of our role there was to provide police, and to train the East Timorese police force so they could eventually take over. But now, according to Human Rights Watch, those police are torturing people:

The 50-page report, “Tortured Beginnings: Police Violence and the Beginnings of Impunity in East Timor,” is based on dozens of interviews with witnesses and victims of police abuse in East Timor. It documents excessive force during arrests, torture and ill-treatment of detainees by the National Police of East Timor (PNTL). Several people interviewed had to be hospitalized because of the severity of their injuries.

(Link added)

This is just depressing. After what Timor suffered under the Indonesians, you'd expect them to be solidly against torture and police impunity - not to start practicing it themselves.

Human Rights Watch is calling on Timor-Leste's government to take a solid stand against torture before it becomes institutionalised. They're also calling on donors to raise the matter in the strongest terms with the Timorese government, and to increase funding for human rights monitoring and police oversight. The New Zealand government should heed this call. We went to Timor in the first place to help protect the human rights of the Timorese from Indonesian-backed militias, and to help them build a new society after three decades of Indonesian oppression. We should be doing our best to ensure that that society protects human rights, and that it has the necessary resources to fulfil its constitutional and international obligations in this area, rather than simply drifting down the path to abuse and impunity.

Free Malcolm Kendall-Smith

Last week, a military judge jailed Flight Lieutenant Malcolm Kendall-Smith for his principaled refusal to obey orders to go to Iraq. He is now effectively a prisoner of conscience of the British government.

Military Families Against the War have set up an online petition calling for Kendall-Smith's immediate release. You can sign it here.

Ouch

Over at Kete Were, Paul has a few things to say about the recent change in editorial direction at the Listener. The best bit?

"Since I became Editor," [Pamela Stirling] continued, "we have managed to remove almost all traces of the difficult stuff which used to fill up the old Listener's pages. It really used to be quite hard work reading all that political commentary and those cranky reviews of difficult books that nobody I knew ever bought. I don't think our readers want all those boring, intellectual things cluttering up their aspirational lives. I know our advertisers don't!"

All I can say is "ouch". Like Paul, I've noticed those changes - the departure of familiar faces and their replacement by exiles from the NBR; the shift from intellectual left-wing commentary towards lifestyle bullshit - and I haven't liked them one bit. Its getting to the stage where I now skim Jane Clifton and Russell Brown, take a quick look to see if Brian Easton has anything this week, then deposit it in the pile where the cat will inevitably vomit on it. Which is a rather pointless waste of V-money. Maybe I should just go back to stealing it from the library...

In the ballot IX

Another couple of Member's Bills I've had sitting around for a while. Previous batches can be found here:

Education (Establishment of Universities of Technology) Amendment Bill (Brian Donnelly): this would amend the Education Act 1989 to create a new category of tertiary institution, "universities of technology". These would lie partway between a polytech and a university, and provide both degree and sub-degree courses, with a strong emphasis on applied knowledge. The purpose of this change is quite openly to allow polytechs to fulfil their aspiration for the status of having "university" in their name, without having to lose their practical focus. Unfortunately, this won't disguise the fact that their degrees will still be substandard.

While I don't have a copy of the bill, reading the Act suggests that this would be done by inserting a list of criteria similar to that in s162 (4) (a), and a new definition in s162 (4) (b).

Land Transport Management (Public Private Partnerships) Amendment Bill (Gordon Copeland/Judy Turner): this would amend the Land Transport Management Act 2003 to allow greater use of public-private partnerships and toll roads. The bill is mostly technical, and the key amendment is to repeal s 58 (2), which requires roads operated under such partnerships to be ultimately owned by the crown (they can be leased, but the term of the lease is limited). It would also allow Ministers deciding on such schemes to ignore public consultation, and to grant a 10-year extension to any lease at any time. The net effect of the bill would be to remove the current requirement that private roads actually be planned, and (under the wrong Minister) allow open slather for their construction. And of course allow them to hold the government to ransom for windfall profits at the end of their concession by refusing to sell a now-vital transport link. Frankly, that's something I think we can live without.

Unless we start seeing some new bills, this will probably be the last batch for a while.

The Solomons

A reader has asked what I think of the government's decision to send more police and soldiers to the Solomon Islands. Really, I don't have any problem with this. The mission - providing law and order - is essentially humanitarian, and is being conducted at the request of the Solomon Islands government and with a mandate from the Pacific Forum. I don't see anything there to object to.

For those wanting some background, Graham Reid has an excellent summary over on Public Address. In brief, this is a country where the idea of government is weak, and where tribalism and corruption appear entrenched. The current riots - sparked by the (possibly corrupt) election of a Prime Minister tarred with the corruption of the previous government - are just the latest symptom of this. Fixing this will take a long time, and any solution is in the hands of the people of the Solomons themselves (as iraq shows, political cultures cannot be imposed from the top down; they need to grow organicly from the bottom up). But in the meantime, I don't see any problem with helping them out by acting as a neutral guarantor of law and order.

The worry is if we cease to be neutral and start favouring (or being seen to favour) some factions or solutions over others. And when that happens, it will be time to come home. But until then, I think the assistance we're giving to the Solomons is a Good Thing, and something worth supporting.

It's official

Italy's Supreme Court has completed its check on disputed ballots, and declared Romano Prodi the winner of the elections. Slivio Berlusconi is still sulking. But then, the stakes are rather higher for him.

The new Parliament will be sworn in next week, but a new government won't form until sometime next month, after Parliament has elected a new President. And one of the first decisions of that government is expected to be the immediate withdrawl of Italian troops from Iraq. I guess George Bush may be sulking as well...

"Wild speculation"

That's how President Bush dismissed reports in the New Yorker that the White House was considering using nuclear weapons in Iran. But that wasn't what he was saying today. In a press conference in Washington, Bush was asked explicitly whether the "options" for Iran "include the possibility of a nuclear strike", Bush replied chillingly

All options are on the table.

Now, that's not saying "we're going to nuke Iran", but its very definitely not ruling it out either, and the only way it can be construed is as an implied threat of first use.

So much for "speculation".

(Hat tip: Billmon)

The end of Nepal's monarchy?

It has been two weeks since Nepal's political parties united to call for a general strike and protests against the King. During those two weeks thousands of people have taken to the streets to demand the restoration of democracy. The government's response has been to beat them, shoot them, and kill them. But bullets do not inspire love or build legitimacy, and the harsh security crackdown has not convinced people of the King's absolute right to rule. Instead, it has confirmed that he is the real problem - and so now the people are chanting "down with the monarchy", and Nepal is on the cusp of full-blown revolution.

Mass-protests are scheduled for tomorrow in what is intended to be a final push to oust the king. It might work, or it might take a few days more - but one thing is clear: King Gyanendra's legitimacy is in tatters, and he is on the way out. The only thing that remains to be seen is whether he goes quietly, or whether Nepal's revolution - relatively peaceful so far - descends into the usual bloodbath.

More information can be found at United We Blog! for a Democratic Nepal.

Must read

Today's must read: former Watergate reporter Carl Bernstein has a piece in Vanity Fair in which he calls for Senate hearings on Bush, now. We can but hope. Thirty years ago, the US showed its democratic system was robust enough to deal with a President who egregiously violated US law and sought to undermine the constitution. Hopefully, that is still the case.

A "please explain" on torture

As a civilised country, the US is a party to the Convention Against Torture. In addition to not torturing people or subjecting them to cruel, inhuman or degrading treatment, one of the obligations on parties is to make regular reports to the UN Committee Against Torture. This year, for the first time since the beginning of the "war on terror", the US will face the Committee. And they have some questions to ask. Quite a lot of them, in fact [PDF]. Starting with

Please explain how [the US definition of torture as only including "extreme acts"] is compatible with article 1 of the Convention

And it just goes on - for eleven pages or so. They ask about Guantanamo and the "black sites", they ask about extraordinary rendition and disappearances, they ask about Abu Ghraib and Bagram and the "Salt Pit", and they ask about prosecutions and whether there has been

an independent investigation regarding the possible responsibility of high-ranking officials of the Administration, including the CIA, the Department of Defence, the Department of Justice and the Armed Forces, for authorizing or consenting in any way, including through the issuance of orders or guidelines, to acts committed by their subordinates, especially during the interrogation of detainees, which could be considered as acts of torture?

Or, in English, "why isn't Donald Rumsfeld in jail?"

One UN staffer is quoted as saying that it is the longest list of issues they have ever seen. The US policy of torture and disappearance is being put under the microscope, and it is being asked to justify every statement or report which suggests it is derogating from the absolute prohibition on torture it agreed to when it ratified. In other words, the US is being put on trial - and given its policies, it is highly likely that it will be found wanting. All the Committee can do is issue an adverse report finding that the US has failed to abide by its obligations under the Convention and listing the practices it considers demonstrate noncompliance - but that in itself sends a powerful message, and one the US does not want sent. Even the Bush Administration has a sense of shame, it seems.

Delayed?

In my post below on the Electoral (Reduction in Number of Members of Parliament) Amendment Bill, I noted that the Justice and Electoral Committee hadn't set a date for submissions. This is unusual, to say the least. The bill passed its first reading and was referred to committee on March 15th - over a month ago - and in that time the committee will have met three times. Calling for submissions is usually done as soon as possible, and is a two-minute job. In other words, the delay is deliberate. While Labour and the Greens have a majority on the committee, I can't imagine the Greens going along with a deliberate attempt to stymie the Parliamentary process and bury a bill. More importantly, I can't imagine National - or Barbara Stewart - remaining silent while that happened. Which suggests that they all agree that they don't want the bill to go anywhere fast, and are quite happy for it to be quietly delayed. The thing I don't understand is why. Does NZ First want to drag this out so they can beat the know-nothing, we-hate-MPs drum for longer? And is Labour going along with this for the sake of stable government?

I'll email some people and try to get to the bottom of this. It would be nice if, having been voted on, people got to actually have their say.

Update: According to my sources, the bill is open for submissions - it just hasn't been advertised, and no closing date has been set yet. Hopefully they'll do the latter when Parliament resumes in May.

More inaction on Darfur?

Over the past three years, government-backed militias have been terrorising the Sudanese region of Darfur in a campaign which can only be described as genocide. More than 2 million people have been driven from their homes, and up to 400,000 have died from direct violence and starvation. The suffering is appalling - and the international community has not been able to do much about it. The logistics and geography effectively rule out military intervention (however justifiable it may be), which means that any solution - whether it be the admission of UN peacekeepers to replace the present AU force, or the Sudanese government accepting its responsibility to protect its own people and reining in the militias themselves - has to be slowly and painfully negotiated. To speed this process, the UN has agreed that such negotiations should be prodded along by the threat of personal travel bans and ICC prosecutions against Sudanese government officials and others who

impede the peace process, constitute a threat to stability in Darfur and the region, [or] commit violations of international humanitarian or human rights law or other atrocities

But these threats so far hadn't borne fruit. So, last week, the US and the UK decided to sharpen some minds, naming four individuals targetted for such sanctions, and beginning a "silence process" which, if no-one objected, would lead to the sanctions becoming official in a matter of days.

Russia and China objected.

When I began thinking about this post, I was expecting to heap abuse on these two countries for protecting war criminals and putting their (substantial) trade interests with Sudan ahead of human rights and genocide. But their reason for objecting is that imposing sanctions now runs the risk of interfering with peace talks currently being conducted in Nigeria between Darfur rebels and the Sudanese government - and I have to admit they have a point. The purpose of these sorts of personal sanctions is to push negotiations along, not pre-empt them. The negotiations have a deadline of April 30th - a mere two weeks away - and it seems foolish to risk interfering. After all, we've waited three years for action - what difference does two more weeks make?

("About five thousand more dead people", says a small voice somewhere).

So, rather than heaping abuse on Russia and China, I think it is better to take them at their word - and call their bluff. The Security Council should refrain from imposing sanctions now in order to allow negotiations to proceed. But the flip side of this is that they should be meeting on May 1st to assess the progress of those negotiations - and be ready and willing to impose sanctions if that progress is unsatisfactory.

But while I'm happy to delay sanctions to allow negotiations to proceed, there's an obvious corollary: the Security Council should be meeting on May 1st to assess the progress of those negotiations, and be ready and willing to impose sanctions if they are dissatisfied with that progress. After all, the point is to help push negotiations along...

Submission

Below is the first draft of my submission on Barbara Stewart's Electoral (Reduction in Number of Members of Parliament) Amendment Bill. It is based primarily on arguments here and here. While submissions haven't actually opened yet (the Justice and Electoral Committee hasn't set a date), I thought I'd get in early and refine my thoughts a bit.

1. I oppose the Electoral (Reduction in Number of Members of Parliament) Amendment Bill for the following reasons:
2. The bill would reduce the overall size of Parliament by cutting the number of list seats without any corresponding reduction in the number of electorate seats. This would result in more overhangs and fatally undermine the proportionality which is the goal of MMP.
3. Under the current system, overhangs are the exception rather than the rule, and the usual beneficiaries are small parties. The current situation (where the Maori Party has one seat more than it is entitled to) is the first time this has happened since MMP was introduced in 1996. But if the bill passed, electorate seats would make up a far larger proportion of the House – approximately 70% as opposed to 58%. The FPP system used for electorate seats means that they are not distributed proportionately; rather, differences in vote share between parties are magnified, and the largest party gains a disproportionate share. Currently, this does not matter. A party would have to sweep almost all of the electorates in order for overall proportionality to be affected – something which has never happened in the history of party politics in New Zealand (the largest landslides – in 1905 and 1990 – saw the winning party gain just over 70% of the seats). But in a smaller House with the same number of electorates, it is far more likely that this magnifying effect would affect proportionality and result in an overhang for the largest party.
4. For example, if the 2002 election had been run under the system proposed in the bill, Labour would have gained 45 seats on 41.26% of the vote – 2 more than they would have been entitled to (the difference being due to the “wasted vote” – votes for parties which did not make the threshold). National would have gained 22 seats on 20.93% of the vote, and gained only one list seat. If the 1999 election had been run under this system, the 41 electorate seats won by Labour would have been exactly what it was entitled to, and it would have gained no list seats. Only in elections where the two major parties were very closely matched (as in 1996 and 2005) would there be a low chance of an overhang.
5. More generally, if the largest party gets 40% of the vote, it would have to win only 57% of the electorate seats before it affects proportionality. This has happened in seven of the twelve elections since 1972. While the effect will not be as great as it was under FPP (the losing party gaining a top-up from the list), this suggests that overhangs benefiting the larger party would once again become an entrenched feature of our electoral system.
6. This problem will only get worse, as the number of electorate seats will continue to grow at the expense of the list. Reducing the number of list seats so greatly will result in progressively more and more overhangs until proportionality completely breaks down (something expected to occur when the number of electorates reaches about 75% of the total).
7. In addition to providing regular overhangs for the largest party, the bill would also magnify their effect, giving their recipients proportionately more power. One extra seat counts for more in a 100-seat Parliament than in a 120-seat one. Thus they will be more of a distortion, and there would be more of an incentive for parties to deliberately seek to “game the system” to benefit from an overhang. This would reduce the legitimacy of the electoral system overall.
8. One solution would be to amend the Electoral Act to reduce the number of electorates proportionately to the overall reduction (i.e. to 58 seats). This would require reducing the number of South Island seats to 13. Quite apart from the legal difficulties (the appropriate clause of the Act, s35, is entrenched and change would therefore require a supermajority or a referendum), this would likely result in electorates which are simply too large to be practical.
9. In short, the goal of a reduction in the number of MPs cannot be achieved without fatally compromising MMP. While some would point out that a smaller House was approved by an indicative referendum in 1999, it is worth remembering that the move to a proportional system was also approved by a far more rigorous and binding referendum process in 1992 and 1993. It would be inappropriate to overturn the results of that referendum without a similarly rigorous process which ensured that the electorate was fully informed of the consequences.
10. As a final note, the increase in the size of the House under MMP has not just ensured proportionality; it has substantially reduced the power of the executive and given us better oversight by Parliament. Many commentators have noted the increased effectiveness of Select Committees under MMP, and this is no accident. More members has meant more people available to do the work of scrutinising legislation, rather than simply rubberstamping it. It has also meant more eyeballs watching the government, ensuring a higher level of accountability in general. Reducing Parliament to 100 members would return us to the pre-MMP days of an unaccountable executive lording it over a rubberstamp legislature. I do not believe this is desirable, or in fact desired by the majority of New Zealanders.
11. I do not wish to make an oral submission to the Select Committee.

Glad to be wrong

A couple of months ago I blogged about the British Legislative and Regulatory Reform Bill, which would have allowed the British government to bypass Parliament and effectively legislate by Ministerial decree on a wide range of subjects (including fundamental constitutional and human rights issues like jury trials or freedom of speech). I concluded with the depressing thought that, this being Britian, the government would probably get away with passing it.

It looks like I was wrong. Over the weekend, the British government backed down, and is now promising to amend the bill to prevent the possible abuses raised by critics and allow far wider democratic oversight. This is a good move. There's unquestionably a role for delegated legislation, but that delegation must always be tightly limited and subjected to proper scrutiny. And a government's promise not to abuse power just doesn't cut it.

Now, if only they could stop Parliament from abusing its power as well...

Four words of doom

On the Office of the Clerk's website:

Parliament is not sitting

And looking at their online programme, they won't be back until May.

What the hell am I going to post about?

Japan and the IWC

The IWC meets in St Kitts and Nevis in June, and its looking depressingly like Japan's plan of buying support from landlocked countries with no boats, let alone history of whaling, has been successful, and that they will finally hold a majority. While this will not allow them to overturn the moratorium and restart commercial whaling, it will allow them to control meeting procedure, and make a number of other changes to advance their position. Like allowing secret ballots as a cloak for corruption. Or ending all IWC discussion of conservation work, or animal suffering. Or getting resolutions approving Japan's bogus "scientific" whaling program, and banning any discussion of whether its actually necessary to kill (and eat) whales to gather the required data. This will be a disaster for the whales - but I'm sure the rich, old Japanese who have a taste for whale will be happy.

In response, ProgBlog reminds us all why we shouldn't vote "Progressive" - but he also points out something useful: victory goes to those who organise. The Japanese have organised, and we have not. If we want to prevent them from tilting the balance towards the whalers, we need to organise in response. We should not be bribing countries to attend and vote, but we should be doing out utmost to encourage countries who share our views on the issue, but have not yet joined themselves - like Samoa, Fiji and the Cook Islands - to make their voices heard.

A visit from the bandwidth fairy

Thanks to Telecom having its arm twisted (or whatever high-level stuff that they talk about in those stories about broadband), they've now started offering cheaper broadband to my ISP. Which means I've just been upgraded from a paltry 256Kbps to 3.5Mbps - for free.

Unfortunately, this isn't going to help me blog any faster. But does mean I can burn through my bandwidth cap faster than ever before. Veronica Mars episode 19, here I come...

No British troops for Iran

A tiny sliver of good news on Iran:

TONY Blair has told George Bush that Britain cannot offer military support to any strike on Iran, regardless of whether the move wins the backing of the international community, government sources claimed yesterday.

Unfortunately, its not all good news. Blair is still willing to diplomatically support the US rush to war, despite his government now agreeing that a long-term, diplomatic approach is needed. And he'll still be allowing US bombers to use bases in the UK and the UK territory of Diego Garcia to launch their raids. I wonder if anyone has considered the position that will put them in if the US actually uses nukes, as it is reportedly planning to do?

New Fisk

Traitors, martyrs or just brave men?

Avoiding prosecution?

There's an interesting take on the aftermath of the Italian election in the Independent, suggestinging that Berlusconi is refusing to admit defeat in the hope of avoiding prosecution.

[T]his is not just a case of Mr Berlusconi being a bad loser, say pundits. During his five years in office he spent much of his time passing laws to avoid going to jail. Many commentators believe Italy's richest man wants to gain an informal pledge of immunity from judicial proceedings from Mr Prodi's government, in return for a guarantee that his Forza Italia party will not make political life unbearable for a fragile administration.

(Link added)

What's worrying is that he may get away with it - or try and provoke a real constitutional crisis (as opposed to an ordinary, run of the mill conformation that the election results are valid - the right of every candidate) if his demand is rebuffed.

Prosecuting Rumsfeld

Human Rights Watch has responded to yesterday's revelation that US secretary of Defence Donald Rumsfeld personally supervised the torture and abuse of Mohamed al-Kahtani, a high-level Al Qaeda prisoner, by pointing out that this makes him potentially criminally liable. They are now demanding the appointment of a Special Prosecutor to investigate whether any crime was committed. Their argument is pretty compelling. Al-Kahtani's treatment - sleep deprivation, forced exercises, stress positions, white noise, sexual humiliation, snarling dogs, and prolonged isolation which eventually left him mad - was quite deliberate, and meets the definition of "severe physical or mental pain or suffering" in the US anti-torture statute. And the US itself agrees that these tactics are torture, at least when they are used by other people:

In 2005, the Judge Advocates General of the U.S. Army, Navy and Marine Corps told the U.S. Senate Committee on Armed Services that the techniques used on al-Qahtani violated the U.S. Army Field Manual on Intelligence Interrogation, and would have been illegal if perpetrated by another country on captured U.S. personnel. The U.S. State Department also regularly condemns as torture the same techniques in its annual Country Report on Human Rights, citing their use in countries such as North Korea and Iran.

Those involved in Al-Khatani's treatment, including Major General Geoffrey Miller, may be directly liable. Rumsfeld may be liable under the principle of command responsibility - that commanders are responsible for crimes committed by their subordinates when they know or ought to know about them but do nothing to stop them. Failing that, I think an ordinary conspiracy charge would suffice.

Unfortunately, given the US's reluctance to prosecute even in cases where prisoners are tortured to death, I think hell will freeze over before we ever see Rumsfeld or any other high-level officer or official held accountable for this. Unless they're dumb enough to set foot outside the US, of course...

Punishing the perpetrators?

The standard dialogue from the US on prisoner abuse is that it is not condoned, and that when it is discovered, the perpetrators are punished.

Bullshit.

Daniel Johnson was a civilian contractor at Abu Ghraib, working as an interrogator for CACI International. Sometime in late November 2004 (the exact dates are fuzzy), he interrogated an Iraqi policeman who was suspected of smuggling a gun into the prison. He was assisted in these interrogations by a Titan Corp translator, Etaf Mheisen, and two military police whose names may be familiar - Ivan Frederick II and Charles Graner. During these interrogations, according to Frederick,

Johnson told him to cover a prisoner's mouth and nose to stop his breathing. The former military policeman at Abu Ghraib said that Johnson had also instructed him to inflict pain by squeezing pressure points on the same prisoner's face and body. Graner, who received immunity from further prosecution for his cooperation with Army investigators, said that he also "roughed up" this prisoner at Johnson's instigation.

So they smothered and choked the guy and basically beat him up in order to get him to talk - a clear case of (crude) torture, and a clear violation of both US and international law. The US Army investigators recognised this, and passed the case to the US Department of Justice for further action (the Justice Department having jurisdiction over contractors). The Justice Department refused to prosecute, citing "insufficient evidence". Which begs the question: how much evidence do they need? Here, they have eyewitnesses willing to testify, and photographs of Johnson placing the prisoner in "an unauthorised stress position". People have been convicted and even sentenced to death on far less.

There's a clear parallel with the case of Mark Swanner, who tortured a man to death in Abu Ghraib, but has likewise escaped prosecution. And with Chief Warrant Officer Lewis Welshofer Jr, who asphyxiated an Iraqi General during interrogation. But Welshofer at least was prosecuted, even if the jury then gave him only a slap on the wrist for smothering a man to death. Johnson and Summers aren't even getting that. And even clearer than the punishment in the Welshofer case, this sends the message that torture is acceptable, and that the US government will not hold people accountable for it.

So much for "punishing the perpetrators"...

How much clearer can it be?

Last month, in a post on yet more torture and abuse in Iraq, I laid out the evidence that torture of detainees by US interrogators was condoned at the highest levels of the Bush administration:

We have widespread reports of torture and abuse, documented in photographs, videos, and statements from both victims, US personnel, and official interrogation records; we have memos from those at the top (notably Secretary of Defence Donald Rumsfeld [PDF] and Lt General Ricardo Sanchez [PDF]) authorising such techniques to be used; testimony from commanding officers that in at least some cases such treatment was authorised (however erroneously) on the basis of those memos; arguments from Justice Department lawyers that its all perfectly legal [PDF] (despite clear statements in both international and US domestic law to the contrary); attempts by senior members of the executive to prevent it from being banned or even seriously investigated; and a stunning lack of prosecutions unless there are photographs which make the news (which implies that the crime isn't so much torture as getting caught). While we do not yet have a document from Rumsfeld or Sanchez ordering the torture of any particular detainee (though their memos suggest that such could exist, and we do have evidence that they ordered detainees to be kept "off the books" so their condition could not be monitored by the Red Cross), the abuses reported from the lowest levels match those authorised by the highest; while clearly some of what has gone on was unauthorised, it is also equally clear that there is a concrete policy that torture is acceptable in at least some cases, and that some of what has been reported was fully consistent with that policy.

If there's a weak point in this story, it's the gap between policy and implementation - a gap exploited in full by those at the top to deny responsibility and say "that wasn't what we really meant". But that gap is slowly being filled. Salon today reports that Secretary of Defence Donald Rumsfeld personally supervised the interrogation of Mohamed al-Kahtani, a detainee who was subjected to treatment that even US military investigators called "degrading and abusive":

Kahtani was forced to stand naked in front of a female interrogator, was accused of being a homosexual, and was forced to wear women's underwear and to perform "dog tricks" on a leash. He received 18-to-20-hour interrogations during 48 of 54 days.

Not mentioned by Salon, but mentioned in other material and in the interviews its story is based on, is the fact that al-Kahtani was menaced, Abu Ghraib-style, with snarling dogs, and kept in a lit cell in total isolation for 160 days. The end result of this treatment was described in passing in this National Journal article:

By late November 2002, an FBI agent wrote, [the detainee] was "evidencing behaviour consistent with extreme psychological trauma (talking to nonexistent people, reporting hearing voices, cowering in a corner of his cell covered with a sheet for hours on end.)"

In short, they psychologially tortured this man until he went mad. And all this time, Rumsfeld was showing a close, personal interest in this particular individual's treatment, receiving weekly briefings. While the report concludes that Rumsfeld did not specifically prescribe this treatment, it is entirely consistent with the general techniques he had previously authorised, and the close supervision exercised significantly undermines any claim that it was not condoned. Again, you have to ask, how much clearer can it be?

Try spinning this

Since the news broke that Tony Blair's Labour fundraisers were offering peerages in exchange for financial support, Blair proxies have been busy downplaying the story, saying that "nothing will flow" from it and dismissing it as "passing political hoo-ha".

So much for that line of spin.

What New Labour has done is corruption, pure and simple. It is illegal, and people ought to go to jail for it. And if they don't, it will be more because of their ability to cover their arses and shred incriminating documents than any lack of guilt on their part.

Old kiwi blog

Hitchens Watch (Hat tip: NZBC)

Kendall-Smith jailed

Flight Lieutenant Malcolm Kendall-Smith has been found guilty of refusing to obey orders to go to Iraq, and jailed for eight months. The judge called Kendall-Smith's disobedience "calculated and deliberate", repeated the usual line that soldiers did not get to choose which orders they obeyed (which is not what we said at Nuremberg), and said that the honourable thing to do was to ask to resign. Which is exactly what Kendall-Smith did. But if you ask to resign and are refused, what course does conscience allow other than disobedience? Because that ultimately is what this case is about: freedom of conscience, and the freedom to refuse to participate in actions you believe are illegal or immoral. By denying this fundamental freedom, the British government has effectively reduced itself to the level of a medieval despotism, and turned Kendall-Smith into a political prisoner.

A retraction

In a post on March 30th, I accused National's Foreign Affairs spokesperson Murray McCully of lying about having raised the issue of Guantanamo Bay with Defence Minister Phil Goff.

That post was wrong.

The accusation was made on the basis of a response to an Official Information Act request from Mr Goff's office saying that there had been "no such communication" with Mr McCully. However, I have since been informed by the National Party that

The matter was raised by the Minister verbally in a private meeting between Mr McCully and Mr Goff in the Minister's office. The context of the conversation was a proposed notice of motion regarding Guantanamo Bay from Keith Locke, the Green party MP.

We are not about to retell the details of a private conversation with the Minister, but the matter was raised and Mr McCully found Mr Goff's response sensible and perfectly reasonable.

I have attempted to contact the Minister's office in an effort to learn exactly why he denied having any communication with Mr McCully on this matter. So far, I have not had a response. I expect that response to involve a claim that the meeting was in Mr Goff's capacity as an MP, not as a Minister, and that therefore it did not fall under the definition of "official information" under the Act. However, as I noted in a comment to the original post, I would have expected this to be mentioned in the original response, rather than a clear and unequivocal statement that there had been "no such communication" and that my request had therefore been refused on the grounds that the information did not exist. Ministers and officials have a duty to give reasonable assistance with requests, and this surely extends to giving proper explanations of what may and may not be covered, rather than simply issuing a misleading blanket denial.

However, I am standing by my claim that the National Party's answers on this matter are at best unclear (and more accurately, downright evasive), and I think the above rather reinforces my point.

(The time on this post has been set to ensure visibility. It was actually posted at 12:17 am)

Update: The following note from Phil Goff arrived in the mail today. It was dated the 11th, so was sent before I contacted his office seeking an explanation - most likely in response to being contacted by the National Party. I think it speaks for itself:

Further to my letter to you of 28 March 2006 regarding Guantanamo Bay, while the information conveyed is accurate in respect to written communication between Mr McCully and myself, I am reminded that Mr McCully did raise briefly with me the question of Keith Locke's notice of motion on Guantanamo Bay. The discussion was very short, the reason for him attending my office being a separate matter.

I recall that the essence of my response was that New Zealand expected standards of international law with respect to detainees to be upheld in all cases. I noted the difficulty which the United States would face in bringing detainees to trial given the circumstances under which they may have been captured.

No information as such was provided to Mr McCully on the issue nor have I sought a briefing from Defence on it.

I guess it must just have slipped his mind...