Tuesday, February 13, 2007

Resurrecting lese majeste

A political commentator criticises someone in power, and is forced to grovel before them for forgiveness on pain of indefinite detention. It's the sort of scene you'd expect to see in an absolute monarchy or shitty third world despotism, in Louis XV's France, in China, or in Bainimarama's Fiji. In fact, it is happening right here in New Zealand. Parliament's Privileges Committee [PDF] has demanded former Progressive MP issue an "unqualified apology" to both Peter Dunne and the House for accurately observing in his "Robson on Politics" newsletter that

The liquor industry’s support for Peter Dunne, as with that of the tobacco, has always meant that he has faithfully delivered his vote for their interests.

If he refuses, the House could - arbitrarily and without trial - fine him, or even imprison him.

The Committee is acting under Standing Order 400(n), which declares as Contempt of Parliament

reflecting on the character or conduct of the House or of a member in a member's capacity as a member of the House

The purpose of this rule, according to the Speaker, is "to protect members going about the business of the House from unfounded, scurrilous allegations of serious impropriety or corruption". It is also, according to the Committee, to ensure that MPs can carry out their duties free of "obstruction". But we shouldn't think that the Committee has forgotten about freedom of speech:

We agree the House must be slow and reluctant to use its penal powers to stifle criticism or even abuse, whether of the machinery of the House or of a member, however strongly the criticism may be expressed and however strongly unjustifiable it may appear. Regard must be had for the importance of preserving freedom of speech in matters of political controversy. Privilege should not be invoked so as to inhibit or discourage the free expression of opinion outside the House, by members and citizens equally, in relation to the conduct of the affairs of the nation. Such criticism is the lifeblood of democracy. A sensible politician must expect it.

Of course, they then go on to do exactly that, on the basis that Robson's observation "diminished the respect due" to the House, and that this somehow "obstructed" Dunne in his duty (by hurting his poor widdle feelings, perhaps?). The resemblance to the ancien regime abuse of lese majeste is not accidental. The "dignity of the sovereign" has simply been appropriated by Parliament - and defended in a similarly abusive fashion.

The resurrection of this ancient abuse is simply outrageous. In case Parliament has forgotten, we live in a democracy, not an absolute monarchy. We are citizens, not serfs. Democratically elected representatives are not "due respect" simply because of their position. Their pretension to deference is exactly that - pretension.

Matt Robson should stand up for his rights to free speech and to criticise our representatives, and tell them in no uncertain terms to go fuck themselves.


You could argue that teh words are defamatory in that they imply Dunne is corrupt. In that regard New Zealanders dont have an unfettered right to free speech. I guess laying a complaint this way is a hell of a lot cheaper than defamation proceedings!

Posted by Anonymous : 2/13/2007 04:32:00 PM

Anon: Indeed you could - and if Dunne thinks they are, he should bring a case. But he should not have any special right by virtue of being an MP to see his reputation protected. And he certainly should not have the right to set up his own little Star Chamber to punish those who fail to "respect ma authorita".

And since someone will no doubt raise it, I have no problem with Parliament being master of its own House. Its their claim to be master of the rest of us that I have a problem with. If Parliament genuinely thinks political criticism of MPs should be outlawed, they should pass a bloody law, not set themselves up as judge and jury in their own case.

Posted by Idiot/Savant : 2/13/2007 04:39:00 PM

"they should pass a bloody law"

I think you're looking for section 242 of the Legislature Act 1908.

As an aside, I don't recall too many complaints when Nick Smith, among other matters, was convicted for "scandalising the court".

Posted by Graeme Edgeler : 2/13/2007 05:11:00 PM

Graeme: Nick Smith interfered with a witness and attempted to actively disrupt court proceedings. That's a rather different kettle of fish.

What we have here is a politician using a kangaroo court to punish a critic. And that is one of the classic signs of tyranny.

Posted by Idiot/Savant : 2/13/2007 05:14:00 PM

Yes, Nick Smith pressured a witness. That is really bad, however, he was also found in contempt of court for other things - including this line from the judgment:

"The intemperate, derogatory and unfair remarks Dr Smith made ... assault the authority and integrity of the Family Court and the fairness and legitimacy of its decision."

People can face theoretically unlimited fines or imprisonment for criticising the Family Court. And Nick Smith was "convicted" of just that.

Posted by Graeme Edgeler : 2/13/2007 05:22:00 PM

Anonymous wrote:
You could argue that the words are defamatory in that they imply Dunne is corrupt. In that regard New Zealanders don't have an unfettered right to free speech.

Ah, but Peter Dunne, like every other MP, can stand up in the House and publicly defame anyone in whatever terms take his fancy. And unlike Mr. Robson, the victims of such attacks have precisely no legal recourse. It's called parliamentary privilege, Anon, and I think it's entirely fair comment to say some are less than entirely scrupulous about how they use it.

And I've one comment about this specific case: Any reputation that can be harmed by Matt Robson isn't worth much to begin with, in my book. :)

Posted by Craig Ranapia : 2/13/2007 05:34:00 PM

"Ah, but Peter Dunne, like every other MP, can stand up in the House and publicly defame anyone in whatever terms take his fancy. And unlike Mr. Robson, the victims of such attacks have precisely no legal recourse."

Well, a defamatory statement is by definition a false statement. Misleading the House is a contempt of Parliament which can result in expulsion from Parliament. Technically.

I/S - a further point on Smith - Tim Selwyn was convicted of criminal damage and sedition; that there was also criminal damage does not mean a sedition charge should fly - is it any more reasonable that contempt of court for "scandalising the judiciary" should stick because the person involved also committed contempt of court for pressuring a witness?

Posted by Graeme Edgeler : 2/13/2007 06:32:00 PM

"... If he refuses, the House could - arbitrarily and without trial - fine him, or even imprison him..." Correct me if I am wrong, but parliament is sovereign, and as such is the highest court in the land. I would prefer the occassional (mis)use of privilege to surrendering some of the sovereign rights of the house of representatives to an un-elected legal priesthood.

Posted by Sanctuary : 2/13/2007 07:06:00 PM

"We are citizens, not serfs."

Are you SURE, about that.....

Posted by Anonymous : 2/13/2007 07:12:00 PM

What is it that Matt Robson said that was controversial?

Posted by Anonymous : 2/14/2007 07:00:00 AM

I have quite often suggested on my blog, and elsewhere, that Peter Dunne is a complete dork. I have also issued derogatory (although not false, I would argue) statements about other MPs I dislike, including Jim Anderton, Murray McCully, Wintson Peters and Don Brash (is the latter still an MP?). Will they come after me next?

Isn't arguing that "such-and-such a politician [insert name here] is a dork, for the following reasons" actually a time-honoured and even central part of political discourse?

Posted by dc_red : 2/14/2007 08:02:00 AM

Surely Mr Dunne simply attempts to defend himself from what his conscience knows to be true?

Posted by Unknown : 2/14/2007 08:22:00 AM

Calling an MP a dork, a criminal, or corrupt in a general sense would not amount to a contempt of Parliament.

What made this fall within the rubric of a contempt of Parliament was that Robson's unfounded allegation intimately connected with the business of the House - accusing an MP of accepting cash from someone to vote a particular way on various items of legislation. Such an allegation differs markedly from an allegation of the type that Don Brash is a right-wing nut-job, or that Helen Clark is an art forger. Neither of those allegations is intimately connected with each person's work an a member of the House - there is at least an element with particular criticism like that of Robson's that MPs is being unfairly pressured to vote against their conscience - e.g. vote in favour of greater regulation of the tobacco an liquor industries or we'll accuse you of just about the worst thing someone could do *as an MP*.

Allegations that Helen Clark is corrupt in the way such allegations have been recently put, or that Don Brash is cancerous reflect solely on them as individuals, not in their work as members of the House. Moreover, it is thought that whilst such behaviour might diminish respect for MPs, it does not diminish respect for the institution of Parliament in the way that allegations that members of Parliament vote particular ways on bills because of monetary contributions from affected parties does.

That's the theory, anyway.

Posted by Graeme Edgeler : 2/14/2007 09:48:00 AM

Very interesting debate.

Peter Dunne is a pompous shit. MPs are accused all the time of favouring special interest groups. I've indulged in statements pointing out that the entire Labour Party favours unions on the basis of the almost exclusive union backgrounds of its MPs. While that isn't defamatory (and the way Robson implied Peter Dunne's association with tobacco and alcohol lobby probably was defamatory), it's common in legitimate public comment to make assertions that an MP is tied to certain lobbying interests.

Peter Dunne is being overly precious. By this standard, Don Brash and the entire National Party could make a complaint of privilege against Nicky Hager for his claims in his book.

Would the Privileges Committee have bent over backwards to accommodate a claim of privilege against National MPs by Nicky Hager? I don't think so.

Star Chamber indeed.

Posted by Insolent Prick : 2/14/2007 10:00:00 AM

"By this standard, Don Brash and the entire National Party could make a complaint of privilege against Nicky Hager for his claims in his book."

No, they couldn't.

The claims in Hager's book, whilst potentially defamatory, were not claims intimately connected with National's behaviour in the House, and were not of the serious - National voted this way because someone-paid-them-money-to-type.

Posted by Graeme Edgeler : 2/14/2007 10:53:00 AM

Just a simple legal question...

Does putting the "I think" prefix on any possibly defamatory statement protect you?

XYZ is corrupt and took money from ABC in exchange for doing 123.

I think XYZ is corrupt and took money from ABC in exchange for doing 123.

One is a representation of (supposed/alleged) facts. The other seems a description of my thoughts, which I'm not neccesarily saying are factual, and as long as I do think that, its a true statement.

Seems too easy?
Could you just present "reasonable grounds" for thinking it, rather than evidentiary proof, as a defence?

Posted by Anonymous : 2/14/2007 12:16:00 PM

FletcherB - it does not.

Truth is a defence to a defamation claim, and so is honest opinion, but mere words imputing that something is an opinion do not necessarily make it so. Whether something is a statement of fact or a statement of opinion depends upon the overall tenor of the publication, and the likely view a reasonable person would take from it.

Also, for the defence of honest opinion to succeed the opinion must be genuine, and based upon reasonable grounds either generally understood, or set out in the publication complained of.

Posted by Graeme Edgeler : 2/14/2007 01:11:00 PM

Thanks Graeme.

Posted by Anonymous : 2/14/2007 01:43:00 PM

I don't see why the committee gave Peter Dunne's complaint any credence. He has previously admitted that he had been supported by the Tobacco industry. I have blogged about it here

Posted by Paul : 2/14/2007 03:07:00 PM

supported by - yes.

Supported by for the purpose of secuirng his vote in Parliament - no.

Posted by Graeme Edgeler : 2/14/2007 03:49:00 PM

How could you know that? All we do know is that Dunne has received some 'support' and that he has voted as the tobacco industry could be presumed to wish.

Posted by Paul : 2/14/2007 04:14:00 PM

And that when challenged about it, he suppresses his critics rather than fronting up and explaining.

People are quite capable of drawing their own conclusions from that.

Posted by Idiot/Savant : 2/14/2007 04:42:00 PM

Paul - you asserted that Dunne had previously admitted that he had been supported by the tobacco industry.

I clarified this statement by narrowing is previous admission to support by the tobacco industry, as opposed to support by the tobacco industry for votes in Parliament.

Do you know of an admission by Dunne that he has been supported by the tobacco industry for the purpose of securing his vote in Parliament?

I don't. And I assert that he has never made such an admission. Your post certainly provides no evidence of such an admission.

All my assertion is is that he has never admitted what Matt Robson alleged (i.e. that Dunne was in the pocket of the tobacco industry). I do not claim to know whether he is or not, I do claim to have an idea whether he has publically admitted it.

[As an aside, I find it interesting that one of the pro-tobacco things Dunne did according to your post, is vote in favour of fines for young people who purchase tobacco - hardly pro-tobacco]

Posted by Graeme Edgeler : 2/14/2007 04:44:00 PM

Graeme, join the dots. Do you think that,if Dunne were to sue Robson for defamation, a jury would award in his favour? There is no causality here, nor is there an admission by Dunne, but there is certainly correlation.

The very fact that Dunne accepted treats from BAT is enough to cause doubt about his motives on this issue. Obviously the Committee of Priveleges does not think such behaviour is relevant but I think he has brought the House into disrepute by his behaviour.

I do not know the circumstances of the fines for teenagers issue - I was quoting from the Dom Post , which seems to think this is a pro-tobacco action.

Posted by Paul : 2/14/2007 05:15:00 PM

Robson asserted that Dunne accepted funds for his vote. If Dunne were to sue for defamation, he would not need to demonstrate the falsity of the allegation, Robson would have to establish the truth.

I very much doubt he can.

If, as you say, there is neither concession nor causality, then anyone asserting causality, as Robson has done, should have a tough time of it in court.

In wonder whether you are putting the cart before the horse. If the case is that Dunne is pro-tobacco, so the tobacco industry supports him, then there is no problem.

There would only be a problem, if, as Robson asserted, Dunne voted pro-tobacco because he was being paid.

Similarly, the receipt by the Labour Party of union funds. If the Unions are paying Labour so that Labour will support particular legislation, then there is a problem; but if unions help fund Labour because Labour likes pro-union legislation, then there isn't a problem.

Posted by Graeme Edgeler : 2/14/2007 06:07:00 PM

The cause for concern ought to be that Peter Dunne accepted favours from British American Tobacco, not that Matt Robson commented on them. If, as Dunne said in his defence in 2003, this is a common practice, it is a greater concern.

When I worked as a civil servant, I had to declare all benefits of this kind, such as being treated to lunch, and decline other offers, such as gifts. I assume that similar rules apply to public servants in New Zealand. Unless I am mistaken, they do not apply to MPs.

Posted by Paul : 2/14/2007 06:33:00 PM

Campaign financing, and the extent to which a Peter Dunne/UF campaign is tobacco-industry funded, or a Labour campaign is union funded is cause for concern. I think the public have a right to know what the Labour Party gets from unions, the National Party from the Exclusive Brethren, or United Future from the tobacco lobby.

This concern is, however, not what Matt Robson raised. Matt Robson did not merely comment on the extent of the favours received by Dunne from the tobacco-industry. He implicitly asserted, without any evidence, a causal link between that support and Dunne's voting patterns.

Robson is more than entitled to raise concerns over Dunne's acceptance of funding/favours from the tobacco-industry. Perhaps he should have raised *that* concern, instead of the concern he actually raised.

Posted by Graeme Edgeler : 2/14/2007 06:48:00 PM

I disagree, Graeme.

Nicky Hager implicity suggested a cash-for-policies link between National's supposed funders--without any evidence--and National's policy and legislative plans.

That is no different to Robson and Dunne.

Posted by Insolent Prick : 2/15/2007 10:21:00 AM

Cash for policies? Not connected enough to Parliament to be a contempt. It needs to be something akin to cash for votes in Parliament.

Posted by Graeme Edgeler : 2/15/2007 10:45:00 AM

Well that hair should be considered extremely well split.

Posted by Unknown : 2/15/2007 10:54:00 AM