Results and concerns

Preliminary election results from Iraq show Grand Ayatollah Ali Sistani United Alliance list ahead with two-thirds of the vote - though this is from partial results from mostly Shi'ite areas; the picture will change as results from other areas come in (though with far lower turnout in the Sunni areas, maybe not by that much).

Two-thirds is a significant number, being the amount required under the Transitional Administrative Law to elect the President. In other words, the Shi'ia are in a good position to appoint the transitional government, and certainly in a position to veto it. No President (and by extension, Prime Minister, Council of Ministers, Supreme Court or military or intelligence officials) will be appointed without their consent. Whether you think this is a good or bad thing depends on how much you like quasi-theocrats.

As for what I think: democracy is a messy business, and it has to evolve at its own pace. If Iraqis voted collectively for people who think that all laws should be in accordance with Islam, then we have to respect that decision. Provided the door is left open for change (meaning regular free and fair elections) then Iraqis will reach their own consensus on how their country should be run. I am concerned about the rights of minorities and women in Iraq, but I'm also aware that it took several hundred years for our model of democracy to acknowledge those rights. I would expect progress to be much faster in Iraq, given universal suffrage and a relatively good position for women under the Ba'ath. People generally don't vote for their own oppresion, and trying to deprive 50% of the electorate of fundamental rights is (or should be) electoral suicide.

And OTOH, that's not a blank cheque. Elected governments can violate human rights just as unelected ones can, and in some ways its even worse. If the Iraqi National Assembly or the government it appoints fails to live up to international standards in this area - and in particular, fails to immediately put an end to the Iraqi security services' use of torture - they deserve to be treated as pariahs.

Rumsfeld and "command responsibility"

US Secretary of Defence Donald Rumsfeld is reconsidering whether to attend a conference in Germany. Why? Because he may face arrest on war-crimes charges over the actions of American soldiers at Abu Ghraib. Iraqis abused in prison and the US Center for Constitutional Rights have filed suit there, as German law claims universal jurisdiction over war crimes and crimes against humanity. It also imposes criminal responsibility not just on those who abuse and torture, but also on their superiors who induce, condone, order, or simply fail to stop such treatment.

Is there a case against Rumsfeld? There certainly is with respect to Guantanamo. Documents released under the US Freedom of Information Act show that he specified the interrogation techniques that may be used there - some of which (such as "environmental manipulation" - leaving a detainee chained to the floor in a pile of their own shit in a tin shack in the tropical sun for a day without any water, causing unconsciousness from heat exhaustion) are specifically noted as being construed as torture by other nations, and some of which (particularly isolation, which is likewise noted to breach the Geneva Convention) require his specific permission. There's also this chilling note:

If, in your view, you require additional interrogation techniques for a particular detainee, you should provide me, via the Chairman of the Joint Chiefs of Staff, a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee

Depending on what was requested, any such authorisation may be an open and shut case for torture under US (let alone international) law.

Unfortunately, they're not trying to prosecute Rumsfeld for Guantanamo - but a similar document reportedly exists for Abu Ghraib, authored by Lt General Ricardo Sanchez (who is also subject to this case). And as Sanchez's political superior, Rumsfeld has "command responsibility" for his actions. The irony here - that this principle of "command responsibility" was the justification for prosecuting high ranking Nazis at the end of WWII - is inescapable. With their "universal jurisdiction" law, the Germans seem to have taken the lesson of Nuremberg to heart.

Sedition by Example II

Despite the title, this is actually the first in a series of historical examples of speech which has led to prosecution under our sedition law (the other sedition by example post beng an attempt to give some examples of modern speech that might fall foul of this law). I will post further examples as they come to hand, and as my currently limited research time permits.

Peter Fraser, demanding an immediate repeal to conscription, Alexandra hall, Wellington, December 10th, 1916:

For the past two years and a half we have been looking at the ruling classes of Europe spreading woe, want and murder over the Continent, and it is time that the working classes of the different nations were rising up in protest against them. [Lloyd George] wants to continue Hell, and to compel the young life of the Dominions into a sweltering Hell. And so far only one country has said - only one part of the world has said, "We think this has gone far enough; we will submit to it no more."

We find that there is a general settling down, and a crystallising of public opinion in favour of peace, or at least peace negotiations, for no country knows what they are fighting for. There is nobody in this country who knows, or in Britain, Germany, Russia or France, But they have come forward and said, "We will send you, whether you want to or not, to fight," and you know not what, no more than the sheep which are branded in the Ngahauranga slaughterhouse.

It rests with the people to say how long they will stand for it. We are told that we were fighting to secure a lasting peace; first it was to relieve Belgium, and the majority of men who went honestly believed that they were going to fight for the rights of the smaller nations and liberty; afterwards, before the incident of Greece came along, before they realised that militarism respected no nationality - if it was necessary to trample underfoot any nation, then any brand of militarism would do. They realise that today. Socialists realise it. Afterwards, we were told that we must fight for a lasting peace. The only peace that is going to last, for millions of men, is the peace they will get in the sleep of death.

In spite of his awful description of war, Lloyd George said that "this war must go on. We do not know how long. The war against Napoleon went on for twenty years. We do not believe this war will go on for long, but we must face it, however long." Are the people going to stand for that sort of thing? I do not believe they will. I believe they are gradually waking up and they will till they sy: "No longer will we be the dupes of crowned heads of Europe or their diplomats."

For saying this, Fraser was arrested and charged with having published seditious words likely to "incite disaffection against the Government of New Zealand and to interfere with the recruiting of His Majesty's forces... discourage the prosecution of the present war to a victorious conclusion; and to encourage opposition to the enforcement and admininistration of the laws... relating to compulsory military service... and to excite disloyalty in respect of the war". He was convicted and jailed for twelve months.

(Source: Tomorrow Comes the Song: A Life of Peter Fraser, Michael Bassett & Michael King, Penguin, 2000.)

New Fisk

Baghdad, the city that dreams of death

Democracy under MMP

One of the reasons people supported MMP was to build a more consensual style of government, with parties working together to pass legislation that is broadly acceptable to most New Zealanders, rather than using their artificial majority to ram through laws opposed by the majority of the population.

While some have argued that Labour is conducting "business as usual" (at least in the area of social policy), on this front MMP actually seems to be delivering. According to the Progressives, 80% of all bills have attracted broad support, being assisted by more than one "opposition" party. The result is better legislation that is more in tune with the wishes of the electorate - something that should be the aim of any democracy.

Given this, why would anyone want to get rid of MMP and return to the days when a tiny, ideologically driven clique within the Cabinet could impose massive changes on the country, regardless of what anyone else thinks?

The Police haven't learned

According to Three News tonight, Tame Iti has in fact been charged with desecrating the New Zealand flag.

Given what happened last time the Police laid such charges, I'd have expected them to be a lot more cautious about laying such charges. While the High Court didn't overturn the law (courts in New Zealand can't), it did "read it down" so as to be compatible with the affirmation of freedom of expression in the Bill of Rights Act; now instead of simply destroying the flag in public, it must be done with the intention to "vilify" it. Exactly what that means is as-yet undefined, but I suspect that if burning the flag is protected, then shooting one full of holes almost certainly is.

But while the police are almost certainly wasting public money bringing this charge, they are doing us one favour: reminding us that this outdated law still exists, and that our supposedly liberal Labour government has done nothing to change it. Like the law against sedition, the law against burning the flag is outdated, a throwback to eighteenth-century concepts of lese majeste. And as I've argued previously, such laws grossly violate the freedom of expression and have no place in a modern, liberal democracy like New Zealand.

"Nation-building" is a significant pillar of the current government - recognising (and thereby helping to define) who we are as modern kiwis. Recognising our longstanding commitment to freedom should be a part of this. Laws banning flag-burning, sedition, and blasphemous libel aren't really who we are as a nation. The government should acknowledge this, and repeal them.

New Fisk

"Free" Iraqis Still Waiting for the Wind of Change

Charged

So, Tame Iti has finally been charged with firearms offenses. Fair enough, though like many I am wondering why it took them so long. What I'm really wondering though is whether the Police will also charge him with dishonouring the New Zealand flag, or whether they have learned their lesson...

Selfish and dishonest

There was an excellent piece in this morning's Dominion-Post by Rae Julian of the Council for International Development on international aid. While we like to think of ourselves as a generous country, New Zealand spends only 0.23% of gross national income on international development assistance. This puts us in the bottom third of the OECD rankings in this area, between Spain and Greece. Other comparisons rank us even more poorly; New Zealand comes dead last in the aid component of the Foreign Policy / Center for Global Development's ranking the rich commitment to development index. While part of this is due to the weighting against small projects, it is also due to our low overall level of spending.

Worse, we have failed to keep our promises to the developing world. Four years ago, New Zealand (along with other rich nations) committed to increasing our level of aid to 0.7% of GNI in order to meet the UN's Millenium Development Goals. Yet spending has not increased, and a Parliamentary question today revealed that the government has "no specific timetable" for doing so.

"Selfish and dishonest" is not how most New Zealanders like to think of themselves, yet that is how our government is painting us. And it will continue to do so until we tell it to stop. To that end, the CID is organising a publicity campaign centered around a petition demanding that the government

...honours its promise to increase its contribution towards the struggle against global poverty by committing to a timetable for achieving the United Nations target of giving 0.7% of Gross National Income in overseas aid by 2015

(PDF downloadable here).

I'll be signing it. What about you?

On this question, we should all be on Zaoui's side

The Supreme Court has agreed to hear the Crown's appeal on whether the Inspector-General of Security and Intelligence must take Ahmed Zaoui's human rights into account in his decision. As I've previously said, this is the big decision - if the Court of Appeal judgement is allowed to stand, then the Inspector-General will effectively be forced to revoke the security risk certificate. Clarifying the "very high" threshold set for the Inspector-General was a central factor in the government's decision to appeal; but it seems that the Crown has already lost that aspect of the case. According to Scoop,

the court will not hear argument on whether the "high threshold" of security risk is the test to considered by Justice Neazor

Instead the appeal will focus on the subsidiary issue of judicial review - whether the decisions of the Inspector-General are reviewable by the courts. And on this question, we should all be on Zaoui's side, because any precedent will not just apply to the Inspector-General, but to judicial reviews in general. What is at stake - and what the government is arguing so hard against - is the very principle that government decisions are reviewable unless they are explicitly said not to be. If you believe in accountable government and the rule of law, then you should be hoping that Zaoui wins.

An independent watchdog

The government has agreed to investigate establishing an independent watchdog for our prison system. This can only be a good move. Existing avenues of complaint are ineffective and viewed as biased - and not without justification. Like the Police, the Department of Corrections is effectively its own judge and jury, and seems unsympathetic to complaints by prisoners; last year it was criticised by the Chief Ombudsman for being uninterested in investigating allegations of serious assaults by its staff. Absent a significant cultural change in the department (hardly likely, given their refusal to discipline management over the BMR or "goon squad" abuses), the only way confidence can be restored is to turn investigation of complaints over to an independent body.

Something I would go to if I was in Wellington

Unsettled Histories: The Waitangi Tribunal and Treaty Settlements, a debate chaired by Dr Claudia Orange (Te papa) and Professor Matthew Palmer (VUW), 18:30 tonight at Te Papa. It's part of an ongoing series on the Treaty and its role, and sounds quite interesting.

Arbitary detention, arbitrary release

The British government has released a man it has held without trial for three years as a terrorist suspect. This is good news, of course - people should not be arbitrarily detained in such a fashion - but at the same time raises more questions than it answers. Such as why the man in question was considered dangerous enough to justify detention yesterday, but safe enough to release today. No explanation has been given either for his detention or release, and in the absence of any examination of evidence by an independent and impartial body, it's difficult not to see both decisions as essentially arbitrary.

This is the key feature of the system British Home Secretary Charles Clarke wants to preserve: the ability to place arbitrary restrictions on people's communications and movements (up to and including house arrest) at a moment's notice, solely on his say-so. As people have noted, this is the sort of system used in a police state, or in apartheid South Africa.

I need an MP

It's time we did something about the criminalisation of sedition.

For those who haven't read my recent posts on the subject, sedition is the "crime" of saying things that the government doesn't like. The law specifically targets speech which "excites disaffection" against them or which could bring them into "hatred or contempt" (examples here). Predicated on a paternalistic feudal belief that the ruled should not simply obey, but love their rulers, and therefore utterly incompatible with modern ideas about relations between citizen and state, it should have been struck from the books long ago.

So, I'm looking for a Member of Parliament willing to take a private member's bill on the matter. My first draft of such a bill is below:

Crimes (Repeal of Archaic Crimes) Amendment Bill 2005

Title and Commencement

1. This Act is the Crimes (Repeal of Archaic Crimes) Amendment Act 2005

2. This Act shall come into force immediately upon receiving the Royal Assent.

Amendments to the Crimes Act 1961

3. Sections 81 - 85 of the Crimes Act 1961 are hereby repealed.

Past Offences

4. No person shall be liable to be convicted of an offence against any of sections 81 - 85 of the Crimes Act 1961 committed before the commencement of this Act.

Given their strong record on civil liberties issues, this is the sort of bill I'd expect the Greens to take. Unfortunately, MPs are only allowed one bill on the ballot at a time, and all their slots are full. The same applies to Matt Robson. Other MPs however do have space, and I am hoping to convince one of them to put the bill forward. Otherwise, we will have to lobby parties to make it a priority in the next Parliamentary term.

I do not care which party picks this up and runs with it; all I care about is that this obscene law is repealed. For a supposedly modern state which affirms the freedoms of conscience, expression and association to still have this sorts of law on the books is shameful, and the sooner it is relegated to the dustbin of history where it belongs, the better.

Sock Thief is moving

...to the Lava Lounge.

New Fisk

Democracy Now: Iraqis Voting for "Freedom From Foreign Occupation"
Amid Tragedy, Defiance

Purged

So, Katherine Rich is gone. How many moderates is that sacked or departing since Brash came to power? Rich, Scott, Te HeuHeu, Sowry... they really seem to be driving out anyone who isn't willing to bow to Brash's hard-right ideology - and in the process undermining any chance of National holding government in the future. As Jordan said, people didn't like the Fourth Labour Government or Ruth Richardson for good reason; trying to resurrect that ideology is likely to be as popular as leprosy with the electorate.

Still, National pursuing policies with a natural constituency of 2 - 3% can only be good for the rest of us...

A question for the Labour government

Is it normal for New Zealand to provide even token military support to regimes which practice torture? And will we be following this up by dispatching military liason officers to Uzbekistan and Zimbabwe?

Reassuring

Following the recent publicity about America's torture plane, I thought I'd do a little check on whether it has been in New Zealand. Air traffic control here is done by Airways New Zealand, a state-owned enterprise. State-owned enterprises are subject to the Official Information Act, so I asked them whether they had any information of the movements of aircraft with the tailnumbers N379P, N8068V or N44982. The answer I received today was reassuring:

I confirm that we have no records of any movements in New Zealand airspace (or in any other airsapce we are contracted to monitor) of any of the aircraft mentioned.

I would have been very surprised if the answer had been anything different, but it never hurts to check...

I'm now wondering whether any other countries have this interesting and useful intersection between state-owned air traffic control and wide-ranging freedom of information laws...

Against the Prisoners' and Victims' Claims Bill

I'm currently working on my submission on the Prisoners' and Victims' Claims Bill and trying to hone down my sense of raw outrage into the sorts of points I can make to a Parliamentary Select Committee. The key ones I think are these:

• For all practical purposes, the bill removes the right of prisoners and former prisoners to sue the government for mistreatment while under the government's care. Yes, the formal right remains, but by demanding that all other avenues of complaint are first exhausted (no matter the fact that those avenues are closed to prisoners), and ensuring that no matter the justice of their claim, they will not receive any financial redress (or their abusers any financial punishment), the bill effectively ensures that such suits will never be brought. There is no point in complaining to a tribunal which is stacked against you. This denial of natural justice will both give our prison officers a free hand for sadism, and encourage prisoners to seek their own justice by their own means.
• The alteration in prisoners' and former prisoners' rights in the court system constitutes an arbitrary and retrospective punishment imposed by Parliamentary fiat. It is a central principle of any justice system that a prisoner is only liable to serve the sentence handed down at conviction, unless convicted of another crime in the interim. But if this bill is passed, every prisoner currently in jail, and every former prisoner who has recently been released, will have something added to their sentence.
• The above is inconsistent with the New Zealand Bill of Rights Act 1990 and various international human rights instruments to which this country is a party. The removal of the practical ability to sue the government violates section 27 of the NZBORA, Articles 8 and 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and Article 14 of the Convention Against Torture. The retrospective increase in sentences violates Article 26 (2) (and 25 (g)) of the NZBORA, Article 11 of the Universal Declaration of Human Rights, and Article 15 of the International Covenant on Civil and Political Rights. It also violates our fundamental values of justice and fairness which these legal instruments encode.
• With such a strong focus on limiting prisoner's ability to gain financial redress, it is difficult to escape the conclusion that the primary purpose of the bill is limiting the crown's financial exposure for its agents' wrongdoing, rather than ensuring justice for all New Zealanders.
• There is a better way. If the government is truly concerned about ensuring that victims of crime are properly compensated for their suffering, it should encourage greater use of reparations at sentencing and make victims creditors (or even preferred creditors). Reparations could then be recovered through the court system, with the government offering legal aid to reduce costs to victims. Alternatively, it could establish a scheme for repayment through the tax system, similar to that used for repayment of student loans. This avoids gross infringements of human rights, though it may require some tinkering with bankruptcy laws.

Anything I seem to have missed?