Friday, 9 November 2007

Law is the loser on the day

No one comes out well from Solicitor General David Collins' decision not to prosecute the 'Urewera 16,' least of all the law and the lawmakers.

Several basic principles of British law that for centuries have acted as bulwarks of liberty have been exposed as damaged if not entirely absent from New Zealand justice: The presumption of innocence... the right to face your accuser ... the principle that justice must only be done, it must be seen to be done... in recent weeks all these fundamental legal principles have been more evident by their absence than their presence.

Starting with the last, in the absence of the evidence against the defendants being made public (which it now never will be), no one in the country outside the police the Solicitor General and the defendants know for sure just what the hell was going on. For public vindication, the police have to point to the only independent person to have seen all the evidence, the Solicitor General, and to his strongly worded vindication of their work, which stressed
that the police have successfully brought to an end what were very disturbing activities. That the police did so without a single shot being fired, injury or loss of life, is a tremendous reflection on the professionalism and integrity of the New Zealand police.
Let's just repeat that: The police have successfully brought to an end what the only independent person to review the evidence says were very disturbing activities. So we have a right to feel grateful, it seems, that the police were acting to prevent something very disturbing happening.

But just how disturbing were they?

Was the scale of the police operation justified?

Did they overreact?

Should we be scared?

Sadly, all these questions which have been hotly debated ever since this show began will never really be properly answered (and here into that vacuum will rush in much flatulent speculation, media moronry and a mah-jong of lawyers hungry for work) because the Act under which evidence was acquired and under which charges for the very disturbing activities would have been brought if they could be is so "incoherent,"as to make that impossible, according to Collins, meaning the evidence will never be made public and will probably have to be destroyed. The law is so bad that as Colin Espiner describes it:
For all the bragging from both major parties about the steps taken to protect us against terrorism, it now appears that Osama bin Laden himself could have been conducting operations from a cave in Ruatoki and the case against him would have been thrown out of court.
So we'll just never know, which is unfair to the police, to the defendants, and to us, the public. Justice cannot be seen to be done. It's reassuring that the independence of police and judiciary has been demonstrated (something some protestors might care to focus on), but less than comforting that without having seen the evidence for ourselves we're left instead to rely on the judgement of one man. David Collins.

We're back to the rule of men, not of law.

And this damages the defendants as well. They've been neither cleared by yesterday's ruling nor properly charged. Defendants properly have the right to face their accusers; the right to know what charges are being laid, and the right to answer those charges and (if they can) to clear their name. But because of an incoherent law, these defendants have lost that right, and we the public will never know whether they would have been able to clear their names or not.

The further tragedy is that they're entitled to the presumption of innocence instead of the whispering about them that will now take place to fill the vacuum, but because of that incoherent law we'll never know for sure whether they would be able to face the charge, and explain the evidence and to have their names cleared or not. They deserved that chance. And we deserved to know. Everybody loses because of bad law, because of an act that, in the words of the Solicitor General is
unnecessarily complex, incoherent and as a result almost impossible to apply to the domestic circumstances observed by the police in this case... A number of people could, on one view of it, [have] possibly come close to meeting the criteria under the act. If the legislation had been framed differently, it is possible that charges under the Terrorism Act may have been able to be brought.
That last sentence is hardly a ringing endorsement of innocence, is it; but the defendants will never be able to properly challenge the odour that it leaves.

So who's to blame for this "incoherent" legislation? It's partly due to the difficulty of drawing up law to stop an act of terror before it happens, rather than gathering evidence afterwards when the evidence can be counted in dead bodies. That said however, it's not beyond the wit of man to draw up such a law, and Winston Peters was commendably direct this morning in fronting up and saying who was fundamentally responsible. referring to himself and his parliamentary colleagues who were responsible for drawing up and voting for it he told Sean Plunket who asked him who's to blame, [audio here], "We are."

It's true.

It's essential that the error is fixed soon, but to be fair the same errors permeate far too much of New Zealand law, and not just this incoherent legislation: lack of clarity; lack of precision; law that is unpredictable in outcome; that ignores fundamental legal principles; or that ignores or explicitly overrides fundamental individual rights. These recent events show again the danger of law that is not objective-- ie., law that is clear, precise, predictable, contextual and rights-based. Harry Binswanger explains the importance of objective law:
Laws mean force; but "the rule of law" - objective law - means force limited, checked, supervised, tamed, so that it becomes the honest citizen's protector, not his nemesis. To achieve this goal, laws must be objective in both their derivation and their form. In regard to derivation, "objective" refers to that which is tied to reality by man's only method of knowing reality: reason. In regard to form, "objective" refers to that which is tied to reality by man's only method of knowing reality: reason. In regard to form, "objective" means that which has the character of an object in reality: a firm, stable, knowable identity. In both respects, legal objectivity stands opposed to the subjective, the arbitrary, the whim-based.
It is to the subjective, the arbitrary, and the whim-based to which New Zealand law under Geoffrey Palmer's influence has been explicitly directed for some time. Let us hope this case acts as a wake-up call to drafters of future legislation. The two problems drafters need to face with specifically the anti-terrorism legislation are these. First, in the words of a colleague:
The grounds, under NZ law, for 'terrorism' to exist are fairly narrow. To cut a long story short, the Crown would need to prove [for example] that Tuhoe was an 'ideology.' To give an analogy, if you are found in possession of flour, eggs, butter, milk, a bowl, a wooden spoon and an oven NZ law requires you to prove the person intended to bake a cake. Simple as that..a cake, nothing else. Their defence could be they intended to make pikelets or scones...and a Jury must take that possibility into account. It is a case of badly drafted law and insufficient debate in Parliament, in the heat of the World Trade Center bombings.
And second, in the words (again) of the Solicitor General:
The fundamental problem is that the legislation focuses upon an entity that carries out a terrorist act, and if individuals are actually developing towards ... carrying out a terrorist act, they aren't yet an entity that is carrying out a terrorist act, and so there is a tautology in the legislation which is extremely difficult to unravel.
It is essential that all such difficulties are unravelled swiftly, and before respect for the country's laws does.

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