Stand up for the rule of law

Written By: - Date published: 10:55 am, September 21st, 2011 - 44 comments
Categories: democracy under attack, law and "order" - Tags:

The Police have known for years that the kind of surveillance they carried out in the Ureweras was illegal.

They went ahead and did it anyway. They were betting that the Courts would permit illegally gained evidence to be used in prosecuting serious offences (no ‘fruit of a poison tree‘ rule here like in the US). They got a surprise with the strength of the Supreme Court’s decision to disallow the evidence against most of the Urewera 18, even though the illegally obtained evidence will still be allowed against four who suffer more serious charges. But the important point is this: your Police knowingly acted illegally to spy on your fellow citizens.

No-one’s saying those being surveilled are angels. It’s not about them. It’s about whether the agents of the State, who are ultimately meant to be your agents, should be allowed to act illegally. Should the ends justify the means or do we believe in the rule of law as the only way to constrain those with power from abusing it?

Should the law be changed for the future? I’m no expert. It seems the experts do want the law changed. That’s why a law change has been in the Search and Surveillance Bill for two years to make this surveillance legal. But the government didn’t get around to passing it. Too busy organising the World Cup, I guess…. oh, wait.

But should the law be changed retrospectively? That’s a whole other kettle of fish. It tells the Police that they can do whatever they want and later claim that their actions have to be legalised post hoc as long as they cry ‘if you don’t you’ll be letting crims free!’

There needs to be some kind of consequence to the Police officers and their bosses who knowingly broke the law. They’re criminals, after all. So far, there’s been no suggestion that these law breakers should be punished from the government.

Regardless of whether the law should be retrospectively changed, the way that National is planning to ‘fix’ the situation is completely unacceptable. According to reports, the law they want to rush through under Urgency doesn’t change the law it just suspends the effect of the Supreme Court decision for a year. So, the surveillance – past, present, and future – will remain illegal, just everyone will pretend the Supreme Court decision making that clear hasn’t happened year. It’s ludicrous and it’s a breach of the rule of law and separation of powers.

If the Executive doesn’t like the law as it stands, it should ak Parliament to change it, after which the Judiciary will interpret the new law. That’s how our system of government works. What the Executive shouldn’t do is interfere in our independent Judiciary by using Parliament to pick out a single court decision it doesn’t like, in which everyone agrees the Judiciary has done its job in correctly interpreting the law passed by Parliament, and put it on ice. It is not for the Executive or for Parliament to do the job of the Judiciary or prevent the Judiciary doing its job. If Bainimarama tried this, our government would be howling.

So where to from here? The Greens, Maori Party and, probably, ACT will oppose this law. That leaves Labour to give National a majority. Labour’s in a tough place. If they make a principled stand they risk the media calling them soft on crime 10 weeks from an election, with the going already tough. On the other hand, if the media decide that rights, restraint of State power, and the rule of law matter – and, incredibly, that’s not something we would normally expect from the media (witness that fuckwit John Armstrong’s uncritical backing of National and attack on Labour today – http://nzherald.co.nz/nz/news/article.php?c_id=1&objectid=10753198) – then Labour can safely stand up for principle, maybe even score a political win. Unfortunately, being a political party, especially a major political party, often means voting for things that you oppose but that is is politically untenable to vote against (even the Greens voted for CERRA, the Canterbury Enabling  Act 1).

I’m hoping that Labour will vote against this Bill. It certainly seems they are drifting that way.

But they will need the support of the media, who need to take responsibility for their constitutional role, rather than acting like sports commentators for once. The journos need to look at the government’s record of anti-democratic actions – Supercity, Ecan, CERA, CERRA, abuse of Urgency, RWC Enabling Act, abuse of question time, refusing to do media on policies like asset sales – and decide that, when the government is seeking it infringe on the independence of the Judiciary to protect the illegal actions of the Police,  it is time to draw a line in the sand.

44 comments on “Stand up for the rule of law ”

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  1. freedom 1
    21 September 2011 at 10:58 am

    Law is the only barrier to State-sanctioned oppression.
    If it is not respected in a democracy, there is no democracy to respect.

    • bbfloyd 1.1
      21 September 2011 at 12:05 pm

      democracy? you surely don’t believe we live in a democracy still? the national party has NEVER actually espoused democratic governance…. it’s one of the central pillars of their political philosophy…

      the only difference between national and the likes of augusto pinoche is that the pinoche regime had the balls to shoot their dissidents…. here, it takes ministers using the full weight of the news media to publicly destroy any dissent…. when it seems obvious they would rather just round up troublemakers and ship them off to one of the shiny new prisons to help them break from their antisocial attitudes…

      • King Kong 1.1.1
        21 September 2011 at 1:08 pm

        Jeez floyd, are you sure we live in the same country?

        National wanting to round up and shoot dissidents?

        When you state things like that it becomes very difficult to take anything else you say seriously.

  2. dave brown 2
    21 September 2011 at 11:28 am

    All this is about the concentration of executive power to make and impose rapid decisions to deal with the global capitalist crisis as it impacts on NZ. Its not about the ‘rule of law’ which is always subordinated to executive power and in times of crisis the law is changed to reflect the direct interests of capital. Nor is it about the police who are mere agents of ruling class interests.

    The bosses rule by means of their own law which is the law of private property and civil rights to defend and facilitate capital accumulation. Cabinet rule is the Board of NZ Inc, Key is the CEO who ‘chairs’ NZ ‘above classes’ and apparently in the ‘national interest’.

    When some element of government (even the ‘executive’ in the US in the form of Obama) threatens even minimally ruling class interests then the dominant finance sector mobilises outside government to accuse it of ‘class war’!

    In NZ such is the dominance of the ruling class executive that there is almost no disagreement among that class as to how to rule. Labour’s traditional constituency – the fraction of NZ manufacturing capital is now mostly foreign owned so its only claim to manage capitalism better than the NACTs is to push R&D to increase labour productivity. But that too has been increasingly ‘internationalised’ by free trade agreements which means that MNCs are sovereign not the NACT board. Thus NACTs are riding high as this ‘national interest’ is the RWC mask for the interests of international capital – mainly, US, Chinese, Australian and some EU MNCs.

    There is no national road out of this serfdom only working class internationalism joining forces with workers right around the world to take on the ‘new rulers of the world’ the imperialist MNCs. In each country that begins with the great refusal to follow the dictates of global capitalism and oppose it without fear as part of the global uprising that is taking place around the world.

  3. mickysavage 3
    21 September 2011 at 11:32 am

    The Herald editorial today was remarkably good and I agreed with every word of it.  Armstrong becomes more irrelevant and more obviously biased by the day.

    • toad 3.1
      21 September 2011 at 11:50 am

      I agree with the general thrust of the Herald editorial, but not with this bit:

      Equally, the police can continue to use covert surveillance if the offending under investigation is serious. 

      They should not be suspending the use of video surveillance in major operations.

      The continued use of video surveillance in defiance of the Supreme Court’s determination that it is unlawful would almost certainly result in Court findings that the Police had acted in bad faith in obtaining the evidence.  That would raise the s 30 Evidence Act bar even higher than in the Urewera case, possible to the extent that such evidence would not be admissible however serious the alleged offence.

      So I think there is a case for some reasonably urgent measures to prospectively permit Police video surveillance under warrant.  But there is absolutely no case to retroactively validate past unlawful Police collection of video evidence – that is simply repugnant to the rule of law.

      • alex 3.1.1
        21 September 2011 at 11:55 am

        Good on you Toad, at least we know one party will oppose these frightening and dangerous government actions.

      • mickysavage 3.1.2
        21 September 2011 at 1:13 pm

        Perhaps I was a bit too fulsome in my praise of the editorial and should have said “I agree with every word of it except for the suggestion the Police should continue covert surveillance in the meantime” …
         
        Of course the Police can continue to do so and argue under section 30 of the Evidence Act that the evidence should still be admitted although I suspect that since the publication of the Supreme Court decision the chances of the evidence being admitted have worsened considerably.

        • Herodotus 3.1.2.1
          21 September 2011 at 1:22 pm

          How is Joe Average suppose to understand teh law? So it is not right for taping regarding the majority of those that were originally charged, BUT it is admissable for the other 5?

          • grumpy 3.1.2.1.1
            21 September 2011 at 1:44 pm

            Simply, Joe average can’t. Nor can a High Court Judge, nor can 3 Appeal Court Judges and neither could 2 Supreme Court Judges.

      • KJT 3.1.3
        21 September 2011 at 3:38 pm

        There should only be one answer to this. The police involved should be before the courts for breaking the law.

        There is no justification for this sort of breach of privacy when there is not enough evidence for a warrant.

  4. Scott 4
    21 September 2011 at 11:41 am

    I believe in the rule of law as the only way to constrain those with power from abusing it.

    Just look at the US in post 911, 4th Reich Mode.

    Toddlers fondled by TSA at airports because they’re a security risk?
    People in the desert forced off of their property because of complaints from non-existent neighbors?
    These are only two examples on a long list of what Americans are willing to put up with.
    Their own Ben Franklin said something like “people who would exchange their freedoms for security, deserve neither.”

    The “terrorist” raid in the Ureweras was a test to see how Kiwis would respond to the “Guilty until proven innocent” mode of anti-terrorist laws, and see how Kiwis would respond to the atrocities perpetrated on people outside of the usual circle of friends.

    We don’t want to go down this slippery slope.

    • Scott 4.1
      21 September 2011 at 12:23 pm

      Here’s a link about the people in the desert: http://sovereignty.net/p/sd/LA-A21.htm

    • Brett Dale 4.2
      21 September 2011 at 2:35 pm

      Do you live in America post 9/11???

      Have you even actually visited America, I have family members that have been there since 1994, I visited there eight times, and people in the USA are going by their daily lifes, eg: working, taking their kids to soccer practice, as normal.

      I fail to see all this oppression you are talking about.

      • Colonial Viper 4.2.1
        21 September 2011 at 2:43 pm

        Didn’t get your balls scanned at the airport then?

        I suppose you don’t wear a turban or a long full beard or are black so didn’t get interrogated by cops on a frequent basis?

        And the US has reintroduced state sponsored slave labour by firing public sector workers and using free labour from prisoners to clean parks and dig up roads.

        Also look for the 46M on food stamps, with no prospects of getting off them, and another 11M whose unemployment benefits have expired, while the elite talk about slashing health and social security spending.

        I fail to see all this oppression you are talking about.

        Look harder upper class white boy.

        • Brett Dale 4.2.1.1
          21 September 2011 at 3:26 pm

          Colonial Viper:

          First Im far from being an upper class white boy, (what is that anyway)

          On my last trip, yes I had to put my hands at the back of my head and go through the
          full body scanner, like other white boys/girls, black boy/black girls/short/tall/fat/skinny/turban wearing/non turban wearing people going through an airport.

          The tsa workers, were professional and polite. On a pervious trip i had a routine bag search, where everything got taken out of my bag and I got question.

          Again they were professional and polite.

          The average amercian like the average kiwi/aussie goes about their normal day, normally.

          Not sure what states are using this prison labour that you speak of, but this is untrue in the places that I have visited.

          Like I said The area that i visited was multi cultural, Americans just getting on with their daily lifes.

          • Colonial Viper 4.2.1.1.1
            21 September 2011 at 3:35 pm

            They were polite and courteous invading your personal privacy and scanning/patting down your privates? Good-oh.

            How about the retina scans and bio-ID photos they took of you then? Are you reassured to know that in four or five years the US military is going to have military drones using those biomarkers to designate and destroy targets automatically without human intervention?

            First Im far from being an upper class white boy, (what is that anyway)

            You’ve had 8 return trips to the USA in 17 years, no doubt trips to Oz and Asia as well in that time, yeah mate you’re an upper class white boy.

            Not sure what states are using this prison labour that you speak of, but this is untrue in the places that I have visited.

            Now I know you are making this shit up, because I doubt you checked out the penal code in each state you passed through as a routine part of visiting family.

            FYI the state I am referring to is WI, under Walker.

            • Brett Dale 4.2.1.1.1.1
              21 September 2011 at 4:10 pm

              Colinial Viper:

              I grew up in a poor part in Christchurch,, my highest paid job has been $17 an hour, I go overseas to the states to visit family (I dont stay in hotels, so I save on accommodation), never been to Asia, been to aussie twice around 20 years ago.

              Im in my 40’s, I have never had a mortgage, never married, I have always rented. I dont have kids, I dont drink or smoke so I save that way, I eat like a freakin bird.

              I have been lucky enough to find work thru my adult years.

              I am white, but Im not rich or upper class, i live in a wee place in an average area.

              I had no problem with walking thru full body x ray machines, or having bag searches, the people who have done this have always been respectful, and im sure they anit doing full body xrays for some perverted pleasure.

              In terms of who is doing the road work/clean up, well the road work is beginning done by road workers, and clean up is being done by students, the area that I go to is a student town.

              Dont be so judgmental on what you think I am.

  5. KJT 5
    21 September 2011 at 11:45 am

    Where are the prosecutions for the police that broke the law?

    Surely a policeman knowingly breaking the laws, they are supposed to enforce, is grounds for dismissal.

    • Blighty 5.1
      21 September 2011 at 11:50 am

      considering that cop got a $250 fine for doing a u-turn on a blind corner and killing a motorcyclist, don’t hold your breath on this one

  6. alex 6
    21 September 2011 at 11:53 am

    Personally I’m most concerned about the overuse of urgency. Its an absolute disgrace that they are allowed to use it to enact a law like this, really makes a mockery of our system of checks and balances.

  7. vto 7
    21 September 2011 at 1:29 pm

    I’m getting reluctant to post here anymore… I can smell them watching and quite frankly I aint exposing myself and those around me to such risk (got plenty other battles to fight). Even though the wider issue comprises a far greater risk.

    I mean, how anonymous are we on here? Not very I strongly suspect.

    Seems we are well down the slippery slope already.

    • terryg 7.1
      21 September 2011 at 1:48 pm

      VTO,

      you are not anonymous, nor can you ever be – not any more, at any rate. Modern data mining techniques are extremely sophisticated, and the data sets get richer and more interconnected by the minute. Big brother has been here for some time now. Not via nonsensical drivel like flouride being used to track you, but through technology.

      cellphone = portable tracking device – gps enabled or not.

      We dont have ANPR cameras here yet (Automatic NumberPlate Recognition), but its only a matter of time.

      image analysis is good enough now to recognise and track individuals – with or without disguises.

      any form of electronic transaction provides identifying and locating information.

      facebook (AKA the greatest surveillance tool ever developed)

      I think for now we here in NZ are somewhat free of the worst of this – but our days are numbered. and the filth routinely trace digital footprints and use them as evidence.

      On behalf of my profession, I apologise to all humanity for what we have enabled. oops.

      • insider 7.1.1
        22 September 2011 at 12:35 am

        We do have anpr cameras. There are a couple of them mounted in vans in Auckland which featured on the news recently, and there are the ones on the northern toll road.

    • Campbell Larsen 7.2
      21 September 2011 at 9:02 pm

      You owe it to the companies that assess domestic terror threats on behalf of the government to keep up your ‘terrorist activities’ – the economy is very fragile right now and unless the perceived threat to Shonky is not maintained and unless his person protection budget increased again those companies might go out of business and the retired SIS and police that work for them would be out of work.

      Sorry couldn’t resist –

      While I agree that there are grounds for concern and understand (and do not judge) if people choose not to post here out of fear I am reminded of an old saying: “to live in fear is not to live at all”
      That is the unstated goal of a police state and the government that promotes it – a world of fear. People that are afraid are easy to control. Don’t hand them their twisted dream (and our doom) on a plate.
      A grain of sand is tiny, yet the beach which it is a part of tames even an angry sea.

  8. Anthony 8
    21 September 2011 at 1:30 pm

    The whole thing seems pretty complicated tbh. Tried to follow it and still don’t necessarily understand the problems.

    Is it that the police weren’t getting warrants for surveillance or that all surveillance some how infringes on the bill or rights?

    Was the evidence legal under whatever original terrorism laws (that no longer apply as they can’t be charged under it)?

    Seems like a minefield for Labour to wade into.

    • framu 8.1
      21 September 2011 at 3:03 pm

      its pretty simple

      surveillance with a warrant is fine.

      Trespassing on private property to carry out surveillance in the hope you (the police) get some evidence, even though you knew back in 2007 that is was illegal isnt

      then when you get found out, getting the govt to override the juduciary isnt fine either

  9. vanakast 9
    21 September 2011 at 2:03 pm

    The nanny-statists complaining about the big brother. How rich.

    • Colonial Viper 9.1
      21 September 2011 at 3:24 pm

      National Nanny State Criers being the biggest paternalists of them all, with food stamps for the young and big brother looking over your shoulder illegally.

      vanakast = hypocrite

    • Pascal's bookie 9.2
      21 September 2011 at 4:19 pm

      Not as rich as big brother complaining about nanny state.

  10. grumpy 10
    21 September 2011 at 2:11 pm

    “No-one’s saying those being surveilled are angels. It’s not about them”

    Is this the start of Standardistas distancing themselves from the accused???????

    [lprent: Nope. It is saying that the issue about this bill isn’t about any particular case, but is about the underlying legal principle. Of course if you don’t understand that, then I would question your abilities to indulge in any kind of abstract discussion. We’d be looking at the beauty of a beach and you’d be comparing each grain of sand. ]

    • prism 10.1
      21 September 2011 at 3:50 pm

      @grumpy
      “No-one’s saying those being surveilled are angels. It’s not about them”
      Is this the start of Standardistas distancing themselves from the accused???????

      Very witty. But the matter is too serious to have little RW-LW potshots about it. The thing to be concerned about is whether we have a police force that can restrain itself to acting within the law, or one that will just go ahead and do what seems good at the time, and then can strongarm the politicians, who are supposed to be those in control of the police not the other way round, to bring in retrospective legislation to make everything okay. “The end justifies the means, Your (not very, fingers-crossed-behind-back) Honour-ed.”

    • Blighty 10.2
      21 September 2011 at 4:03 pm

      It’s clearly a reference to the 40 cases that Key is talking about, not the people who have had their charges dropped.

  11. Draco T Bastard 11
    21 September 2011 at 4:12 pm

    (even the Greens voted for CERRA, the Canterbury Enabling Act 1)

    Yeah and remember the backlash they and Labour got over that. When political parties vote for something obviously wrong people notice.

  12. AAMC 12
    21 September 2011 at 5:14 pm

    “Labour’s in a tough place. If they make a principled stand they risk the media calling them soft on crime 10 weeks from an election, ….
    then Labour can safely stand up for principle, maybe even score a political win. Unfortunately, being a political party, especially a major political party, often means voting for things that you oppose”

    I don’t buy it, if Labour is opposed to this, they NEED to “stand up for priciple” and win the debate against Nat & the Media. It’s this running scared trying to second guess the media which currently gives Key his advantage.

    Call him out, win the fight, at least give it a shot. At the moment, what have Labour got to loose? And what do they stand to gain from a principled stance and a performance like we saw from Goff in the House the other day.

  13. RedLogix 13
    21 September 2011 at 6:58 pm

    Interesting Kathryn Ryan interview with Jonathon Temm the President of the Law Society this morning.Basically he deplored this governments ‘knee-jerk’ responses to controversial cases to make fundamental changes to the legal system that always have the effect of increasing the power of the state against the individual.

    He listed the Weatherston case resulting in the removal of the defence of provocation; the Waihopai case resulting in the removal of the ‘greater good’ defense; and the Kahui twins case leading to severe curtailment in the ‘right to silence’. In three short years the fundamental balance has been substantially shifted against the defendant with one govt’s populist response to public controversy.

    These balances and checks have long been part of our legal system for good reason; abolishing them in thoughtless haste, simply to appeal to an often underinformed public prejudice is very, very poor governance. And now we are seeing exactly the same populist response to illegal police evidence gathering. This is not a one off; it is part of a clear pattern of behaviour on the part of this government.

    Bear in mind that Temm is not some wingnut on a blog; he is a heavy-weight legal figure leading one of the most conservative professions in this country, and a profession with absolute expertise in these matters. When people of this kind of stature start to speak out, on purely professional grounds …. you KNOW you have a problem.

    • MrSmith 13.1
      21 September 2011 at 7:44 pm

      Here Here Redlodgix; this lazy excuse for a government has always taken the easy option on just about every issue, thats what happens when you are surrounded by your marketers, you play the percentages, take the easiest options, move on without discussion, just keep it rolling along, they know most people only see things out the window of the bus!

    • Puddleglum 13.2
      21 September 2011 at 9:25 pm

      I’ve noticed that same trend, RL.

      It’s part of the National Party’s (Key’s?) general strategy of sniffing the wind for public sentiment on issues that are peripheral to the fundamental economic agenda and then making a show of enacting special legislation (often under urgency or just very speedily – ironically, with the result of leaving other legislation such as the Surveillance bill on the backburner) or executive decisions – typically with Key making the announcements.

      It’s legislation and decision making subordinated to the PR and spin strategy. Not a pretty sight. 

  14. lefty 14
    21 September 2011 at 7:51 pm

    Whats tough about doing the right thing?
    If Labour made a habit of it instead of trying to second guess the media, it would soon become second nature.
    They would win support sometimes and lose it other times. Thats what happens anyway, even when they try to slavishly follow so called public opinion or listen to focus groups.
    If they started doing the right thing all the time people might eventually start trusting them.
    Wouldn’t that be something?

  15. alex 15
    21 September 2011 at 10:39 pm

    I never thought I’d say this, but GO ACT!!! They announced they wouldn’t support this law change under urgency, meaning it will have a chance of being defeated in the proper parliamentary channels. Take that National, your right wing has said this is too extreme a step. Maybe time to shelve the policy then?