Wednesday, October 06, 2004

International commitments

The government seems to have realised that our long-standing commitment to international human rights instruments limits their policy options on prisoner compensation. Yesterday in parliament, Justice Minister Phil Goff cited Article 14 of the Convention Against Torture and the same article in the International Covenant on Civil and Political Rights as preventing us from denying prisoners access to the courts. For those who aren't familiar with these conventions, the relevant article of the ICCPR states:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Article 14 in the Convention Against Torture reads:

Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

(Interestingly, New Zealand has a reservation on this article which allows us to award compensation to torture victims "only at the discretion of the Attorney-General". This is because we have generally replaced the right to sue with no-fault ACC)

While Goff didn't mention them, Articles 8 and 10 of the Universal Declaration of Human Rights (affirming the right to "an effective remedy by the competent national tribunals" and "a fair and public hearing by an independent and impartial tribunal" for human rights violations) are also relevant.

This led to predictable wailing from the right, with United Future denouncing the government for "putting international treaties ahead of the interests of justice in our own country", Tony Ryall displaying appalling ignorance of our international commitments, and Stephen Franks effectively demanding that we withdraw from them to "restore our sovereign right" to treat prisoners like animals (strangely, he's very silent on "sovereign rights" on other matters). Which I think tells you everything that you need to know about those parties. These treaties define the minimum standards of justice in any legal system - fairness, equality under the law, due process, rights to appeal etc. They are not an imposition on our sovereignty, but an affirmation of our fundamental values.

Unfortunately, I can't help but feel that the government is viewing the prisoner compensation issue through the wrong lens here. Yes, due process and the right to sue the government is a part of it - but more importantly, the government's proposals are effectively a post-facto increase in the sentance of everybody currently in prison. This violates numerous human rights instruments, as well as fundamental decency, and (dare I say it) "common sense". It is a long-standing principle of justice in a democratic state that sentances are handed down by independent judges, to prevent political interference. It is also a long-standing principle, affirmed in section 25 (g) of the BORA, that criminals are liable only for the sentance that applied at the time an offence was committed. Suddenly declaring that for 12 years after release criminals will effectively not be allowed to own substantial property violates both of these principles. And more practically, punishment has to end at some points. If it does not, and if criminals will continue to be punished for their crimes no matter what they do, they have no incentive to change their behaviour. By dramatically increasing punishments and making them last long after formal release from prison, the government is inviting criminals to earn that punishment. That's not the sort of thing a decent - or sane - society does.