Public bodies and public criticism

Public bodies and public functionaries aren't immune from criticism. If an organisation or person is performing a public function - like the Kohanga Reo National Trust Board - criticism comes with the territory.

The Kohanga Reo National Trust Board is accountable to the public. They operate with public money for the benefit of a segment of the public. That makes their attempt to stifle criticism anti-democratic, petulant and oppressive. Last week the board instructed their lawyers to inform TangataWhenua.com that they had published allegdly defamatory material. The letter demanded that TW.com remove the allegedly defamatory material. As is their duty, TW.com kept the material up and published the threatening letter.

The board has no moral right to threaten defamation. The criticisms directed at the board are part of the democratic process. The board isn't some private citizen with immunity from criticism. They're accountable to the public. It's a dark day for democracy when a public body attempts to silence its critics.

The board doesn't understand how a democracy works. It's not hard. The Minister of Maori Affairs must step in to clean up the mess that's been created.

The Urewera failure

So the Urewera verdict is in and it’s a fizzer. The case, triggered by the 2007 terror raids, has come to an anticlimactic end with the jury finding the remaining defendants guilty on some firearms charges – which were largely minor – and failing to reach a verdict on whether or not the four were part of an organised criminal group. An organised criminal group is a group of 3 or more people who have as their objective(s) obtaining material benefit from the commission of crime(s) punishable by four years or more. This charge, the supposedly serious charge, is so far removed from what the Police and the government of the day were alleging in 2007.

Casting our minds back to 2007, the Police were claiming that they foiled a paramilitary plot and hijacked plans to, among others things, assassinate the Prime Minister. Terrorism charges were laid, but the Solicitor-General decided that terrorism charges would not hold. The Police and Crown Law, however, charged ahead. Failure after failure followed and charges against the majority of the defendants proved unsustainable and, as we know, the only serious charge the Police and Crown Law had against the remaining defendants resulted in a hung jury. Whatever way you look at it, this is an epic defeat for the Crown. Thousands of man hours, millions of dollars and the might of the New Zealand Government could not bring down a bunch of pohara Maori and Pakeha activists. Tame Iti is now further entrenched in Maori mythology and rightly so.

The government and the Police owe Tuhoe an apology. Ruatoki was attacked, and I deliberately use the word attacked, as school buses were searched by armed police, kaumatua and kuia were illegally detained, men and women were man handled and mistreated all for a few firearm charges. Charges that are so remote from what the Police were alleging. It’s a sorry affair.

Finally, I think the Maori Party must be acknowledged for the work they did in the wake of the raids and what they continue to do. Pita Sharples was right, at least in respect of Tuhoe, when he said the raids set race relations back 100 years.

National shows contempt for our democracy

The National Government acts not according to principle, but according to what is pragmatic and favourable for those with power. From Stuff.co.nz:

The government will introduce legislation suspending the effect of the Supreme Court Urewera judgement after legal advice rendered nearly all police video surveillance footage unlawful. 

Prime Minister John Key today revealed legal advice that almost all use of covert video surveillance by police had been rendered unlawful by the Supreme Court ruling - a decision with potentially significant implications for law and order in New Zealand.

"To give you an idea of the scale of the impact this has, ministers have received advice up to 40 current trials may be affected by this decision and over 50 police operations will be impacted. 

"We therefore have the immediate and pressing concern that police are currently left in a position where they are unable to investigate some serious criminal proceeding." 

Key confirmed that police had been forced to suspend all video surveillance, including major operations, because of the Supreme Court ruling. 

Cabinet had decided today to take legislation to Parliament temporarily suspending the effect of the decision and it intended to pass it next week under urgency. It was seeking cross-party support to do so.

It appears from the Prime Minister’s statement that the Police were employing unlawful investigation methods across numerous cases. Investigation methods that the Chief Justice described as “deliberately unlawful”.

If the Police were aware in the Urewera investigation, which occurred years ago, that they were employing illegal investigatory methods, yet continued to do so in the years following the completion of the Urewera investigation, then the Police must be held to account. The law should not be bent to accommodate law breakers (i.e. the Police), the law should be used against those who break it intentionally.  

Of course we are going to receive no such thing from this Government, in fact, we will receive the opposite. The Prime Minister has indicated his intention to enact retrospective legislation under urgency. This is a gross assault on the rule of law, but on par for a National Government.   

Retrospective legislation is often associated with despots and, in New Zealand, Tories. Laws should apply prospectively and never retrospectively. The enactment of retrospective legislation destroys certainty in the law and is absolutely arbitrary.

A fundamental tenant of the rule of law is freedom from arbitrariness i.e. freedom from the random enactment and application of laws. The government’s actions in this instance represent arbitrariness at its most bitter. It is worth noting that the Search and Surveillance Bill, which is currently before the House, will fix the so called problem that the Police face. Meaning the bill will legalise the currently illegal practises the Police are employing, but the government would rather arbitrariness and ram through new legislation as opposed to pushing the Search and Surveillance Bill up the order paper.    

The Police are not above the law. One of the most basic conceptions of the rule of law is that nobody is above the law. The Police must obey the law and when a transgression occurs the criminal justice system must be invoked against the offender. This applies as much to a law breaking constable as it does to me.

The Police actions in the Urewera investigation represented a blatant breach of our constitution, of which the rule of law is a cornerstone, and a blatant breach of human rights which, therefore, offends s8(d) of the Police Act 2008.

In reality, the Government can legislate how it wants. However, any decent government should carefully balance their right to enact laws against fundamental social and constitutional values. Government’s right to govern is often limited by what is basic and decent in our society as well as the Treaty of Waitangi and the principles of the Treaty, constitutional conventions and, quite importantly, the rule of law. In my opinion the government’s actions represent a form of double jeopardy and will undermine our confidence in democracy. The government’s legislation will validate the evidence the Police illegally obtained meaning charges can be brought against the former accused. This is, as I said, a form of double jeopardy and an affront to notions of democracy, justice and our egalitarian values. No doubt such legislation will violate a host of international laws as well as domestic law.

The government is also sending a big fuck you to the Courts. The government’s actions, or intentions I guess, in this instance illustrate how authoritarian this government is. This is the daddy state. A government that rules for those in power. As a Maori, I have no confidence in this government. They do not govern in my interests. This government undermines Maori confidence in our democracy. The sooner we turf these pig-headed losers out the better. 

See also: NRT, Imperator Fish, Political Dumpground, Robert Winter, Tumeke, The Dim Post and Gordon Campbell. But for the best analysis see this piece from Dean Kinight of Vic Law School and Andrew Geddis of Otago. 

Bad call, Hone

Angry, arrogant Harawira may be gone, but stupid Harawira is still with us. From the Herald:

Hone Harawira has described Osama bin Laden as "a man who fought for the rights, the land and the freedom of his people".

Mr Harawira said on Maori Television's Native Affairs that bin Laden had "pursued independence for his people, his family and his tribe".

When asked if he was concerned about how such comment could be construed, he said he was Maori and "tributes to the dead are always appropriate" in Maori custom.

It is not that Hone lacks discipline, he is not shooting from the hip, he genuinely believes that Osama Bin Laden is freedom fighter. I am no expert on the subject, but others more qualified than I have indicated that he was not – he was in fact a cruel and oppressive man with warped religious notions. Osama did not believe in freedom in the proper sense of the word.

This is Hone’s most significant problem. He is supremely confident in his beliefs, but some of his beliefs are built upon romantic and ultimately fallacious notions. Hone Harawira immediately equates the underdog, the perceived anti-western/anti-colonial fighter with something good. This is why it is vitally important, in the interests of the Mana Party, to have people who will challenge and reshape some of Hone’s stranger views. If Hone believes something to be true he will tell you. This is a virtue of course, but problematic given Hone’s, to be polite, unconventional views.

Perhaps what is most disappointing about this issue is that it will not help Hone’s standing among his constituents. One or two Maori nationalists may hold the same view, but the underclass will not – the only image they have of Osama Bin Laden is the image of a mass murderer. His non-voter constituents will probably think Hone is mad and condones murder.

I have no problem with Hone’s view that Maori respect the dead. But respect falls short of homage. I am really, really disappointed that Hone has made this mistake. Although I did not see the Closeup debate between Hone and Brash, by all accounts Hone did well. However, he has now provided the media with ammunition to run negative stories.   

As I said, Hone does not lack control. This was not a random comment. It was a statement of genuine belief and a foolish one at that. If anything sinks the Mana Party it will be these sorts of deformed views – it will not be lack of discipline and control.