Wednesday, September 14, 2011

Saving the right to silence

More good news today: having tried to pass the buck on its plans to undermine the right to silence and the presumption of innocence, the government has backed down. The right to silence has been saved. Take that, Stephen Franks!

But that's only half the struggle. The bill as it stands would also abolish the right to trial by jury for most crimes, allowing the government to lock you away for up to three years on the word of a judge alone. The driver for this is of course cost; rather than building more courtrooms and hiring more judges, the government wants to trim the cost of selecting and empanelling juries. But what we'd save in cash, we'd more than pay for in injustice and the credibility of the justice system. The problem is as much one of perception as reality. Judges say they're as fair as juries, and that justice won't suffer - but the public just doesn't believe it. We know juries are a vital safeguard, a bullshit detector to prevent stitch-ups and ensure the police have done their job. And we don't trust judges to do that job for us. Especially when they regularly seem completely divorced from reality.

But there's a bigger problem here as well. The right to trial by jury for any offence with a penalty greater than three months imprisonment is currently enshrined in the Bill of Rights Act. Simon Power is proposing to amend that clause. And he can, with a simple majority of the House (in this case, its a majority of zombies and crazies - Roger Douglas and Hilary Calvert). But this is a fundamental part of our constitution we're talking about! If they can do this, they can also do it to freedom of speech, or the right to vote.

If there's one thing this debacle has taught us, its that politicians can't be trusted as guardians of our fundamental rights. It is time to take those rights out of their hands, by entrenching it and requiring either a supermajority or a referendum to modify. We currently do this with the core of the Electoral Act; its time we did it for our other rights as well.