Friday, October 8, 2010

Ron Smith: Protest and Peace

There is a right to public protest in a democracy but there isn’t a right to damage property, public or private, in order to dramatise that protest. The 2008 decision by the Wellington District Court to acquit the ‘Waihopai Three’ on charges of burglary and intentional damage (on grounds of justification) was an absurdity and the Government is quite right to attempt to make that point by bringing a civil action for damages. The fact that some of those concerned appear to have limited means is not a reason for not proceeding with this action, although it may be a reason not to expect a financial return appropriate to the likely costs. There is an important point of principle here. It is simply obnoxious to public policy that this kind of deliberate damage can be seen as acceptable, provided that there is a claim, however vague, of moral right.

The fact that civil prosecution will provide a further opportunity for the defendants, and (particularly, perhaps, Peter Murnane) to promote their views, is also not a reason to eschew such action. In fact, this is an argument that cuts both ways. Prosecution will also provide a chance to further scrutinise the sort of naïve pacifism that Murnane et al are peddling. As is so often the case, this goes with an unreflective anti-Americanism that has its roots in the communist propaganda of the Cold War years.

The argument that appears to have been accepted at the earlier trial was that the harm that was caused by the actions of the three was justified by a moral ‘good’, in this case the identification of the evil consequences of the operation of the Waihopai electronic interception station. This is the, so-called, ‘claim of right’. The problem with this line of argument is that the connection between the operations of the Blenheim facility and supposed historical harms to persons in Iraq, or Afghanistan (or Kosovo, countering genocide?) is a very tenuous one. (It is not as if there was, say, a burning building and Father Murnane, or Messrs Leason or Land, broke down a door, or smashed a very expensive plate-glass window in order to contribute to the rescue of someone trapped inside.)

To be sure the Blenheim intercepts do contribute to the intelligence inputs of the five partners in the long-standing UKUSA arrangement (Australia, Britain, Canada, New Zealand and the United States) of which they are a part. They thus may have been relevant to the American intervention in Iraq (in 2003) and Afghanistan; as well as the United Nations-sponsored operations in Iraq in 1991 (The Gulf War). They also may have been relevant to our own intervention in East Timor in 1999 and may be contributing to present operations in the so-called ‘war on terror’. Speaking generally, nations do not act prudently unless their security activities are based on the best intelligence they can get and, for the five parties concerned, Waihopai, is potentially a significant contributor.

That is the general situation but the specifics (given the fact that we don’t know what particular intelligence is gleaned at a particular site and to what purpose it is put) are different again. Even if we think that some of the casualties in, say, Iraq were unjustifiable, or, indeed, that the whole invasion was unjustifiable (which I don’t) it is hard to link any specific harms to intelligence product from the Waihopai base. The most that might be said is that we don’t approve of intelligence gathering activities at all, or that we don’t approve of anything that America does (which might be quite close to the position of the Waihopai Three).

There is something else. In the case of political protest, the mere fact that a political claim of right is made does not change the fact that laws have been broken. Ghandi, who (so-to-speak), ‘wrote the book’ on civil disobedience, is quite clear on this. Those who deliberately break the law in the course of their political activism are liable for the consequences and they should face them. That is why Civil Disobedience is ‘civil’; it is generally respectful of the law of the land. On this reading, the Waihopai Three should have pleaded guilty in Blenheim and they should plead guilty now. Given that they haven’t, it is right that the Government pursue them for the costs of their irresponsible and antisocial activities.


Anonymous said...

The fact that these people damaged crown property is unchanged by their earlier legal position of not guilty. While chasing a claim against them for damages will no doubt be expensive, to ignore the damage caused sends all the wrong messages to those who might take similar action. They might argue that sinking a RNZN vessel as a protest is acceptable because they have a 'moral right' to protest and cause harm in light of the fact that the RNZN supports policing actions around the world.
I fervently hope the crown wins this one and cleans these people out.

Brian said...

Comment from Brian.

To be able to protest publicly has come down to us not as a right, but as a privilege of our democratic system.

In the 18th & 19th centuries public protest, especially political was assumed a right, and Hogarth’s picture “chairing the candidate” reveals a more dynamic and somewhat noisy approach to elections than we experience in New Zealand. In fact it was followed at times by rioting, which was controlled by a simple announcement in the reading of the “Riot Act” to allow people time to depart before any civil action.

The Waihopai Three case and the decision by the Wellington District Court to dismiss the charges hints strongly that in a political case, especially when the three accused are connected with left wing political organizations. It would be extremely embarrassing to any Government, and any action would place the three in the realm of Martyrs.
I would hasten to say that any connection between the Court’s decision and the Government, is to use a Scottish legal phrase:- “Not Proven”. Nevertheless it was a strange legal decision.

If the Waihopai case had been followed with a verdict and sentence, how much more so is the destructive action during the Springbok tour when fences at the Hamilton Rugby Ground were destroyed in what could only be described as a full scale riot?
The consequences of a lack of any arrests and sentences for this damage, has set the tone for public protests ever since. The lack of a firm legal direction to our Police from Parliament; on how they deal with a protest which has crossed over the line, and become a riot, shows that their concern is focused more at a Political level rather than a Civil one.

These two actions have opened the way in the future for organizations to realize that such anti social behavior can be tolerated, and even in some cases condoned.

How then can respect for the rule of law keep us safe, and what is more to the point, allow us to have the privilege of living a democratic country?

Marris said...

The decision by the crown to sue the Waihopia Three for civil damages is nothing more than sour grapes. If the crown had treated the presentation of their case with due regard rather than contempt I suspect the defence of 'claim of right' would have been lost. I suggest the crown take the aquittal of the Waihopia three as a salutory lesson that they too are subject to the law

K M Findlay said...

War is a filthy and obscene business but to refuse to help when people are suffering as they were under Saddam Hussein and are under the Taliban in Afghanistan is bad but to oppose those trying to help is worse. War is obscene but pacifism is the ultimate obscenity.

Anonymous said...

Well said KM Findlay...
Pacifism assumes there is no malevolence in the world.
I wonder how these gutless wonders would feel if they were under Taliban/ Nazi/Stalinist/Maoist regimes where torture and murder is common. Would they want outside intervention or would they be happy with their lot? How would they feel about Keith Locke & co deserting them because ...."we musn't have war".?
The perpetrators of this Waihopai crime are spineless and poor excuses for Humans.
When people are oppressed/murdered etc under dark regimes we should act and hats off to those who do....especially those on the front line.