The French are admired for many things, but I haven’t heard many people acclaim their legal system as being so vastly superior to English law that we should quickly scrap one of the bulwarks of our legal system, in order to be more like the French.

This change however is precisely what the Law Commission is proposing:

The commission suggests that 12-person juries could be replaced by a panel of one judge and two semi-professional jurors. It says jurors could receive legal training and be employed on fixed-term contracts. Law Society president Jonathan Temm says there is no harm in exploring the idea.

“It’s perfectly reasonable and practical, and indeed it’s prudent to look at other methods of trying to resolve outcomes. The proposal by the commission that judges be more inquisitorial, be more involved in the process – either sitting alone or with two professional jurors – is something that’s worth considering.”

[Law Commission press release: Law Commission Considers Alternative Trial Processes]

Not co-incidentally, it would also be cheaper to run trials via a judge and a small pool of “semi-professional” jurors – who of course, would never let their prospects of re-employment sway them to deliver the verdicts unanimously and on time, as sought by the system paying their wages.

One of the arguments being put forward for making this change is that some witnesses find the current adversarial system to be “ aggressive and traumatising.” Well, I don’t know about you – but if I were being charged by the state with an offence, I would want the advocate defending me to be able to question the state’s witnesses quite aggressively. There is someone present to prevent that interrogation from exceeding the bounds of acceptability and causing the witness wilful harm. That person is called the judge. That’s one of the roles he’s expected to play.

If the judge is currently failing to give adequate protection to witnesses, it is hard to see how giving the judge more power to bypass the adversarial system is the right solution. I’m not sure how being questioned by a judge – unimpeded by any restraint from the bench – is likely to be any more pleasant than being cross-examined by one lawyer, and defended by another, with the jury reaching the final verdict.

Overall, that seems to me to be a better spread and balance of powers than the system being touted by the Law Commission, which involves handing almost all of the power to the judge sitting on the bench – with virtually no restraint on him or her at all, beyond the slim chance of a subsequent judicial review. Thankfully, the Criminal Bar Association is talking sense on this issue :

Criminal Bar Association vice-president John Anderson is against such a change. “You still need people to ask difficult questions. There are still going to be cases where false accusations or incorrect accusations and difficult questions have to be put. It makes little difference whether a judge puts the difficult questions or a defence lawyer.

No difference, except a defence lawyer might feel more motivated to pose those difficult questions. And a jury might well be trusted to reach a verdict that was not only fair, but more likely to be seen as being fair. Certainly seen to be more fair than if a judge was allowed to do most of the questioning, carry out the analysis and deliver the verdict, unimpeded by anything other than the five cents worth of advice from a court-hired pair of semi-professional jurors.
Under the system being proposed, the adversarial system would only kick in after the judge has completed his inquisitorial probing of the witnesses. Frankly, it would be possible to take the Law Commission’s proposal a bit more seriously if it had emerged in a climate that – for the past three years – had been free of the systematic series of attacks that have been made on the rights of defendants in criminal trials.

We have seen reduction of trials by twelve jurors to trials with ten, we have seen moves to scrap unanimous verdicts and replace them with majority verdicts, and we have seen the right to a jury trial for offences carrying penalties of three months imprisonment reduced to where the penalty now has to be three years or more before the right to a jury trial is available. We have also seen the introduction of new disclosure requirements that favour the prosecution. All part of the legacy of former Justice Minister Simon Power.

This latest proposal should be seen in the same slanted light – as an attempt to tilt the balance of justice so that more prosecutions can be gained. Give more power to a judge (and to a couple of the court’s paid officials standing in for a jury) and more prosecutions are almost bound to follow. While imperfect, a jury of ordinary citizens is one of the few elements of the justice system that can’t be captured and controlled by the state.

Out in the real world, the state is freely giving the Police more intrusive powers to mount and conduct its investigations at one end of the process and – via this proposal and others – is also giving more powers to the judge and prosecution lawyers to deliver the convictions being sought. It may be cheaper, and is arguably more “efficient” but it doesn’t have all that much to do with justice.

Why, instead, is the Law Commission not investigating the reasons why there have been so many major cases where the system has made serious, and life-damaging mistakes – from Arthur Allen Thomas to Ahmed Zaoui to David Doherty? Such cases have caused far more harm to the victims than the “trauma” allegedly inflicted by cross examination in court, and have done far more damage to public faith in the justice system. But every time such a miscarriage of justice is exposed, the solution has been to enhance the prosecutorial power of the state, so that similar mistakes will be harder to expose in future.

What such cases (both here and overseas) have exposed is the fallibility of “expert” and “forensic” testimony, as fads and fashions in science come and go. What judges and juries alike do need in the modern courtroom is access to independent advice when the “expert” testimony they are hearing is in conflict. Increasingly, the complexity of the information at issue is beyond ordinary citizens and judges, with neither having the necessary expertise to decide which expert is the more reliable witness.

The Law Commission doesn’t seem to be proposing how to help juries do their job better. Nor does its current brief seem to include suggesting ways to reduce the potential for miscarriages of justice. In the ongoing pursuit of efficiency and cost reduction, it wants to get rid of juries altogether. This proposal has to be rejected.

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The city contains a Sunni majority who dominate one side of town, plus an influx of the minority Alawites who also happen to be at the centre of the Assad dictatorship. In Homs, there has been fighting between the local Alawites and Sunnis, who have barricaded themselves into a part of the town now being pounded by the Alawite-controlled Syrian Army – and which has been subject to assassinations and kidnappings carried out by an informal Alawite paramilitary group called “The Ghosts”.

The challenge for the Assad regime is how to crush localised Sunni points of dissent in places like Homs without creating a sectarian split nationwide – a split that would endanger its own alliance with the Sunni upper classes in Damascus and elsewhere. If this uprising becomes a wholesale sectarian struggle along the lines of the Shia vs Sunni conflict in Iraq, the Sunnis who comprise 75% of the population will certainly win. The Assad dictatorship appears to be genuinely confused about how to handle this situation. It is gambling that it can somehow suppress the Sunni-led revolt in Homs without killing tens of thousands of people, and thereby inflaming the entire Sunni population.

As Landis explains above, a tank assault on the Sunni enclave in Homs may put an end to the conflict there – but if it also happened to kill 40,000 people in the process, this would light sectarian fires elsewhere and worsen the social divisions that would eventually, bring down the regime. The Alawites, who comprise only about 12% of the population may carry the big sticks, but they know that they need to tread somewhat carefully. As yet, there has not been widespread support for the rebellion, and not merely because the regime is suppressing the opposition. For all its many failures, the secular Assad regime is still preferred to the combination of reactionary religious zealots and dubious business interests seen to be leading the uprising – and who, as this guest contribution to Landis’ website suggests, the bulk of the rebel leadership has been urging the impoverished Sunni rebels in Homs to take up arms and conduct kamikaze attacks on the Syrian military, while they themselves sit in air conditioned comfort in the likes of Doha.

The international response to the Syrian uprising date has been equally questionable. For regional reasons of their own (eg controlling Iran and influencing events in Lebanon) Saudi Arabia and the US have been supporting the uprising and condemning the bloody repression, while having no real intention of committing troops on the ground. Or of offering much in the way of tangible support beyond keeping up the flow of weapons for an ill-matched battle that bids only to keep the slaughter inside Syria at a diplomatically useful and sustainable level.

The UN process in particular has been worse than useless – assuming, that is, it ever did intend to offer anything but false hope to the rebels. After the way China and Russia got treated last year by a US/European axis that played fast and loose with the meaning of the UN resolution on Libya, there was no way the Chinese and Russians were going to make that same mistake twice, and give the US and the Europeans carte blanche on Syria.

In reality of course, there is little stomach in the West for any outside intervention in Syria. Partly because there is little convincing evidence that the uprising (as yet) enjoys much in the way of domestic support inside Syria. Bad as the Assad regime may be, the Syrian people seem to have little enthusiasm for the current alternative. Which leaves rebel cities like Homs facing a couple of very unpalatable options: surrender, or martyrdom.

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The news that the banks in New Zealand have returned to their pre-global recession levels of profit comes as no real surprise. New Zealand banks and their Australian masters have weathered the global financial crisis better than their counterparts elsewhere, and were less responsible than those overseas colleagues for the crisis in the first place. Even so, the scale of current profit-taking is still mind boggling, given that the local communities from which they have been extracted are still suffering so badly.

As RNZ reported this morning:

PWC’s latest Banking Perspectives report shows profits at ANZ, ASB, BNZ, Kiwibank and Westpac collectively rose 25% to $2.8 billion. PWC analyst Sam Shuttleworth says the growth is driven by better interest margins as wholesale funding costs have fallen and customers switch from fixed to floating rates. He says there’s been a big shift in the use of floating mortgages and approximately 58% of residential mortgages are now floating, compared to 14% in 2007.

Mr Shuttleworth says interest rates are still comparatively low compared to what people had to pay three, four, five or even 20 years ago He says the eurozone debt crisis could have a major impact on future earnings as funding costs increase, unless banks manage to pass it on to borrowers.

Right. And banks always do manage to pass on the cost of the bad times to borrowers. These flush times for bankers have to be contrasted with the very bad times being experienced in Christchurch – where the city is struggling to meet its $1 billion share of the earthquake rebuild. Put those two sums together: the banks took out $2.8 billion in six months, Christchurch is in deep strife trying to find a little more than a third of that amount, and is being pressured by Earthquake Recovery Minister Gerry Brownlee to sell its assets in order to do it:

Brownlee said the clown remark [ made by him about Christchurch mayor Bob Parker] had been “inappropriate” and he “shouldn’t have done that”.
But he said the “real issue” was how the council would meet its more than $1 billion share of the cost of rebuilding its quake-wrecked city.

“Let me tell you, when the Government is spending $5.5b anywhere, we expect the recipients of that to have some plan for how they will participate in what will be a very, very expensive recovery. And that plan has to be a lot better than ‘we’re just going to put up the rates and we’re going to borrow a lot more money’.” Labour’s Christchurch East MP, Lianne Dalziel, questioned Brownlee in Parliament over suggestions the Government had pressed the council to sell some of its assets. Dalziel suggested there was “a showdown behind the scenes” with the Government putting pressure on the council to raise rates and sell off its assets.

Please. It would be idiotic to force Christchurch to sell its assets to pay for its rebuild, under present conditions. Given the current state of the city, those assets would earn only fire sale returns. Hocking off the city’s assets dirt cheap is yet another version of the destruction of its legacy – and while it may make sense to Brownlee to sell off that legacy to any of his government’s real estate speculator mates who may be waiting in the wings, it would be a betrayal of the people of Christchurch who as Dalziel says, have been through enough: “What they don’t need are backroom deals being done on the future of their city and their city’s assets.”

By raising rates and borrowing, the Christchurch Council is doing the right thing, and all it can do. Government has to do the rest, and if it can’t afford the rebuild from current revenue – or from the offshore insurers, who I thought were footing the bill – it has to garner more bridging revenue in this year’s Budget by raising taxes. For ideological reasons, this government acts as if it has a spending problem – but in reality it has a revenue problem, one that it refuses to address.

It could also ask the banks to come to the party. So far, the banks have done nothing for the community in the wake of the Christchurch earthquakes, beyond deferring when it will take its profits. As accommodation supplements run out, more and more residents of the shattered city are paying mortgages on properties they can’t inhabit, and on business premises they can’t utilise. Where is the leadership from Gerry Brownlee in getting the banks together to broker a deal whereby they offer genuine, enduring relief to the community on such issues? Right now, the banks can plainly afford it.

To return to those banking profit figures. Taking out profits of $2.8 billion inside six months during a climate of recession is simply obscene. Especially when the vast majority of that money will be heading offshore into the coffers of their Australian owners – and this, again, only underlines the stupidity of privatising essential assets 25 years ago. If the BNZ at least, had remained in state hands, New Zealand would be in a far stronger position to help out Christchurch in particular, and to create productive competition in general between the Australian players – who, as a result, dominate our banking system virtually unimpeded. Kiwibank does its best, but is still too small to have much leverage on what is, in effect, an Aussie cartel.

Brownlee and his mates won’t touch the banks. Banking reform? Too hard. Welfare reform? Now, there’s an easy target. And his ‘solution’ for Christchurch is to try and force the city to sell its assets at guaranteed rock bottom prices. What a clown.

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As yet these two developments look less like threats than like invitations to negotiate. The government would have looked far more competent if it had invited these negotiations, rather than appearing as if it is being dragged kicking and screaming to the negotiating table. The only winner in the current situation is the Maori Party, which at least looks like it knows what it is doing.

Going back for a moment to last week’s battle over whether private investors can, or can’t be tied to the legal obligations of the sort currently contained in the SOE Act, and which prohibit actions inconsistent with Treaty principles… Key has tried to suggest that these obligations merely exist on paper – they are he claims, only ‘largely symbolic’ in meaning – but this is not an accurate description.

As Andrew Geddis has pointed out on Pundit, “Section 9 of the SOE Act serves as a shield to stop any action by the Crown that would be in breach of Treaty principles… saying that s9 is “largely symbolic” because it hasn’t (because it can’t) be used in Court to force the Government to do something positive is plain wrong. The potential power it gives to Maori to stop Government plans for SOE’s is considerable.” In the past, that power has deterred successive governments from taking certain courses of action, and induced them to seek negotiated solutions.

The government’s attempt to downplay the importance of the provisions it wants to change – and its related attempt to argue that it could not bind private investors to the current provisions – looks peculiar in other respects as well. I remember doing an interview in the 1990s with then Overseas Trade Minister Lockwood Smith about New Zealand’s list of exemptions during the WTO Uruguay Round. Smith told me that this country’s then-MFAT trade negotiator Tim Groser had negotiated a small list of exemptions for New Zealand from those WTO rules for investment, and these included the Crown’s Treaty obligations.

Which raises the question – if New Zealand can require foreign investors under the Uruguay Round and Doha Rounds to observe the existing legal array of Treaty obligations as a condition of investment, how come it can’t expect the same of the private shareholders in the four energy companies now being readied for sale – especially when, allegedly, the vast bulk of them will be New Zealanders?

As things stand, it’s hard to square how we can require Treaty compliance from WTO-consistent foreign investors – apparently without significantly affecting the price they are willing to pay – while saying it would be impossible to impose a similar burden on a group comprised primarily of domestic investors. If, as promised, a weaker Treaty compliance clause is inserted in a rewritten SOE Act it is hard to see how this would not have the effect of watering down the conditions on foreign investors under current WTO rules and exemptions. Anything less would, in itself, be WTO-inconsistent. Sparing foreign investors may be the real purpose of the proposed section 9 changes – but if so, where is the evidence that the Treaty burden that foreign investors have faced for nearly 20 years is so intolerable that it now has to be removed?

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Apparently, the retail price of a Steinlager six pack is $16 here where it is brewed, and only about $6 in the US and about $4 in Britain, even after it has been shipped almost 10,000 kilometres to market. As with milk and cheese, a big part of the explanation by the corporates in question for New Zealanders is that the price has to be in line with expectations that exist here, and that exist there. Or as Lion’s corporate flack put it in the Herald:

I guess overall you could say it’s a reflection of the different marketplace for beer pricing. It will be a whole lot of factors… Some of it will be tax, some of it will be making sure the pricing is in line with the other beers that it competes with in the marketplace….

Even after the tax element is removed, it seems, it still leaves the beer costing double the price in New Zealand, than elsewhere. Meaning: business will screw the consumer here because it can, but won’t do it over there because it can’t get away with it. Why, in New Zealand, do free market forces more often look like price fixing, cartel behaviour and monopoly rents? Because so often, they are. But we wouldn’t want to regulate against such practices, would we? Because that would mean more red tape, and business hates red tape.
ACC appears to operate with much the same predatory code of ethics, judging by this story of an Auckland woman’s nine year battle with ACC over compensation for an accident that began with her falling down some broken steps outside a Palmerston North café, and which (thanks to medical bungling) eventually required the amputation of her lower leg. ACC’s contribution has been to fight to deny and minimise her entitlements to care and compensation at every step of the way :

She successfully challenged ACC for entitlements, including that she had suffered a treatment injury, funding for a suitable car, for a kitchen she could use safely – and even to get access ramps installed in her home. When she sought ramps, an occupational therapist told her: “‘Your family can help you up. They can carry you’.”

In 2008, an ACC complaints investigator instructed a mid-level manager to apologise to Mrs Smith after finding various parts of the ACC Code of Claimants’ Rights, including the right to honest, open and effective communication, had been breached.

Even so, the harassment continued, with ACC trying – illegally – to influence the supposedly independent assessment of her case. As one of her advocates pointed out: “By law, rehabilitation needs assessments were required to be based on the claimant’s needs, “not a predetermined decision by ACC’s staff to deny entitlements”.”
This morning’s third cautionary tale is about a typically rosy assessment by the Ministry of Economic Development of New Zealand’s potential earnings from oil exploration. Allegedly, New Zealand can expect to treble its oil production and become a net exporter of petroleum by 2030 with no negative environmental downside at all… Such a wonder is possible, according to Energy Minister Phil Heatley because : .

Mr Heatley says the oil and gas industry is already the country’s fourth biggest export earner and there is real potential for growth. The oil industry in Taranaki has a good safety and environmental record and that could be repeated elsewhere in New Zealand, he says.

Except that… the environment elsewhere around New Zealand for extracting oil in such quantities is not at all like Taranaki. It involves deep sea drilling off East Cape and Northland, or in the turbulent conditions of the Great South Basin. These are regions vital to tourism and fishing industries, and to the migratory path of several endangered species. And – newsflash ! – the current oil industry best practice at such depths, and in such conditions, cannot prevent oil spills and major contamination . If that happens, New Zealand will have to shoulder the cost and will struggle to win anything that remotely looks like adequate compensation. The likes of Heatley and the local oil industry lobby groups would have a lot more credibility if they didn’t live in denial about such risks.

There is also little or no recognition that – in return for New Zealanders shouldering such risks – the royalty rates that we charge and our capacity to monitor the rate of extraction are both very low, by world standards. Surely, if we are to take such risks in extracting oil in our difficult conditions, we want to ensure we get the best return from the resource, and we want to know that we can adequately measure just how much of our precious resources the foreign oil company is extracting, on any given day, week or month. Instead, the MED review endorses a further review of the rules and regulations contained in the Crown Minerals Act, to ensure that nothing gets in the way of the oil multinationals.
So that’s one typical morning, and three typical stories of predatory behaviour by the private sector, an SOE and in a government report. No wonder that people feel as if they are living under siege. Literally, they soon will be – given the current plans to extend the surveillance society with the deployment of predator drones in the United Kingdom. Some people, at least, are feeling there may be something… a bit sinister about this trend. So, as the Guardian reports , a public relations campaign is soon to be launched in Britain to re-assure the public that this is a really, really good idea:

Companies seeking to enable the routine use of surveillance drones across Britain are planning a long-term public relations effort to counter the negative image of the controversial aircraft. The Unmanned Aerial Vehicle Systems Association (UAVSA), a trade group that represents the drone industry to the UK government, has recommended drones deployed in Britain should be shown to “benefit mankind in general”, be decorated with humanitarian-related advertisements, and be painted bright colours to distance them from those used in warzones….

A series of presentations given by industry figures in recent months show public opposition is considered a major hurdle. UAVSA has discussed how it could use the media to disseminate favourable stories, creating a narrative that presents the introduction of drones in the UK as part of a “national mission”.

Paint the drones in cheery colours. Of course. Maybe there’s a lesson here for ACC.

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As of Jan. 29, Romney’s campaign and Restore Our Future, the affiliated Romney super PAC, had spent $15.6 million on ads in Florida as compared to $3.29 million disbursed by Gingrich’s campaign and the pro-Gingrich Winning Our Future super PAC.

That’s small consolation to Gingrich, given that big spending on television advertising is the name of the game from now on :

The presidential primary race will now move from places like Iowa, New Hampshire and South Carolina — all small(ish) states where retail politics is the coin of the realm — into states that, like Florida, have large populations, diverse electorates and where television is king….Think Ohio, Michigan, Arizona and so on and so forth.

That means that unless Gingrich can begin to raise money at a much faster clip or his super PAC can match the spending of Romney’s super PAC spending, he’s likely to find himself fighting the same, losing fight in the states and weeks to come.

Translation: a PAC is a Political Action Committee, an “independent” fund raising vehicle for US political candidates. A Super PAC is… well, as with almost everything else in US politics, Scoop is reliant on Stephen Colbert for the inside story. As is the rest of America, apparently.

For the record here’s the background on Super PACs, which seem to be yet another symptom of the US higher courts’ recent readiness to pander to wealth and influence:

The super PACs were made possible by two judicial decisions. First the U.S. Supreme Court held in Citizens United v. Federal Election Commission that government may not prohibit unions and corporations from making independent expenditures about politics. Soon after, in Speechnow.org v. FEC, the Federal Court of Appeals for the D.C. Circuit held that contributions to groups that only make independent expenditures could not be limited. Super PACs are not allowed to coordinate directly with candidates or political parties since they are “independent”. However, a candidate may talk to his associated super PAC via the media.

So where does that leave the presidential contest? Almost tied, and harder for Obama to win than if his opponent were a Gingrich or a Ron Paul or whoever else ended up being the “Anyone but Romney” candidate. On paper, the campaign looks like the 2004 campaign in reverse – with Obama as the divisive incumbent and Romney in the John Kerry role as the perceived flip-flopper. Plus the added factor, in Romney’s case, of being seen to be the candidate of the ultra-wealthy 1%.

The flip-flopper charge may well stick. Certainly, Obama’s team can find plenty of ammunition for attack ads in the contradictory positions that Romney has taken. Robert Creamer has helpfully tabulated some of them.

As in… Romney was pro-choice on abortion until he became anti-choice, passed a healthcare law in Massachusetts while governor before attacking Obama’s almost identical “Obamacare” version, supported the extension of the assault weapons ban but now opposes it, supported the financial stimulus plan but now says he opposed it, said that he believed human activity was contributing to global warming but now doubts whether we know for sure, supported the legislative measures taken to resolve the sub prime crisis as “the right thing to do” but now says he opposed them etc etc. Not for nothing did his former rival Jon Huntsman describe Romney last year as being “ a perfectly lubricated weathervane on the important issues of the day…”

Moreover, the guy comes across as a complete idiot when speaking off the cuff. This is someone who last year described his $374,000 side income from speaking fees as being “not very much”. Only hours after yesterday’s win in Florida, Romney tried on CNN to bond with middle class voters in remarkably clumsy fashion, by saying: “I’m not concerned about the very poor.” Or about the very rich who, presumably, can look after themselves. And furthermore:

“The challenge right now — we will hear from the Democrat party is the plight of the poor,” Romney responded, after repeating that he would fix any holes in the safety net. “It’s not good being poor and we have a safety net to help those that are very poor… My focus is on middle income Americans… In any political campaign, he said, “you can choose where to focus. You can focus on the rich — that’s not my focus. You can focus on the very poor — that’s not my focus. My focus is on middle-income Americans.”

Right. Given the rate at which the middle class is sliding into poverty, this was an extremely awkward way of bonding with them. From Romney’s vantage point, as one commenter noted, the entire 99% of Americans probably look “very poor.” And he’s making a hand-on-heart promise to fix any holes in the welfare safety net? Hardly credible, given the zeal with which the Republicans have been trying to shred it. As Washington Post columnist Greg Sargent commented:

Romney seems to have meant that the “very poor” have a safety net while the middle class doesn’t, and that the latter will be the focus of his campaign. But this is another sign of his apparent inability to avoid saying things that play perfectly into the Democratic strategy of painting him as the candidate of the one percent. (His recent claim that he likes to be able to “fire people” who provide services to him is a case in point.) If this tone deafness isn’t giving Republicans pause about Romney, it’s hard to know what would.

Regardless, as Democratic Party analyst William Galston points out in the latest New Republic, Obama currently looks vulnerable:

Consider a January 26 Quinnipiac survey of the Florida electorate, beginning with President Obama’s standing in a state he carried by 3 points (51-48) in 2008. Forty-six percent of registered Florida voters approve of the way Obama is handling his job, while 52 percent disapprove. Forty-seven percent believe that he deserves to be re-elected, while 49 percent do not.

The contours of this terrain, Galston concludes, look perilous for the President, especially given Florida’s perennial status as a key swing state. The Florida pattern is not markedly different from the situation nationwide. An average of major national surveys conducted in January gives Obama a modest 2.3 point edge over Romney.

While the fractious Republican nominating process is alleged to have badly damaged Romney, there is little conclusive evidence of that being so. At the very worst, a recent NBC/Wall Street Journal survey found that Romney’s unfavourable ratings among independent voters had increased by 20 points over the past two months, but that still leaves Obama currently leading Romney nationwide by only 8 points among that important bloc. Hardly an impossible gap to bridge, once the campaign proper kicks in.
Finally, and in one important respect, we could be heading for a re-run of the last presidential election. In 2008, John McCain was also suspected by elements in the Republican Party of not being a true conservative – and so, disastrously, chose Sarah Palin as his running mate in order to mobilise the religious right. This year, Romney will be under the same pressure.

If he does start being bruised by the perception that he is a flip-flopper, he may seek to “unite” the Republican Party by choosing an extremist as his running mate – and in some respects, Rick Santorum’s working class conservatism probably does look like a useful balance to Romney’s snooty elitism. As with Palin though, the prospect of Rick Santorum being a heartbeat away from presidential power will scare off many, many voters, especially among independents, and female voters.

So Romney could be damned, either way. Because if he doesn’t pick someone like Santorum as his running mate, he risks the emergence of a hyper-conservative third party candidate on the right who would split the anti-Obama vote, just as Ross Perot helped to sink Bush Senior in 1994. Buying the Florida election – and thereby, the nomination – might have been the easy bit, for Mitt.

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It is tempting to read Parker’s comment as a warning that the marchers – who clearly want the heads of Parker and CEO Tony Marryatt and new council elections by April and May – could end up by accidentally validating the government’s agenda. Which may be to declare the entire Council dysfunctional, sack the lot and appoint a Commissioner, along the lines of the Environment Canterbury coup de-etat.

In which case, the eventual main casualty of today’s march – “See ? In their thousands, people have no faith in the current Council!” – could be the last vestige of the very democratic procedures that the marchers want to restore.

These days, former Sydenham MP and one-time mayoral hopeful Jim Anderton is an interested observer from the sidelines. People are looking for a clear and co-ordinated approach to the reconstruction of Christchurch, he says, and there are now only three options for getting there.

“One, the present Council has to tough it out, and sort itself out. Which is what they’re now being challenged to do. What are the chances of that with the present incumbents? Not great. I don’t think Parker has learnt anything. The second choice is that you have a Commissioner. But the government has probably lost the stomach for ending all democratic processes in the city. We only have a Council left now. Thirdly, you take it back to the voters. Have another election.”

And if there were fresh elections to be held mid-year, would he be interested in standing again, against Parker? “No. No, I wouldn’t. Look, there’s a window of opportunity in politics, and you’re suited for it and you’re ready for it and that was it. It was one of the places in time and I’m not going to go back there. I don’t need it. Its not like I ever really wanted to be the mayor. (According to Anderton, he’d tried to convince former mayor Vicki Buck to stand before ending up as the candidate last time.) I was prepared to do it. But no. And that’s a problem, getting the right person [to oppose Parker]. It is a tough job now.”
The sources of the Christchurch Council’s malaise goes back well before Bob Parker and Tony Marryatt, even though their autocratic managerial style – which has bypassed inclusive Council-wide communication – has only compounded the problem. In his Press column yesterday, Chris Trotter put his finger on a couple of very relevant points. One, as Trotter pointed out, Christchurch used to be exceptionally well governed, by a larger Council with a more inclusive style of operating:

In 1993, Christchurch – which then boasted a council of twenty-four elected representatives – won the coveted Carl Bertelsmann Prize for “Best Governed City in the World”. A decade later the Local Government Commission reduced the number of Christchurch City Councillors to sixteen. Where once the Mayor and CEO of Christchurch City had to round-up twelve to thirteen compliant councillors, they now needed to corral only eight or nine.

The subordination of active democratic participation to “effective and efficient” management is a dangerous development at the best of times, but in the face of natural disasters on the scale of the Christchurch earthquakes it is nothing less than catastrophic.

Citizens desperate to “get things done” all-too-easily fall prey to the hard-edged promptings of administrative authoritarians – handing over powers that should never be surrendered to those who dismiss democracy as an unwelcome hindrance to “good governance”.

So how do you get from being the best governed city in the world to the current mess in no time flat? Easy. You bring in a ‘change manager’ with a mandate to pursue ‘efficiency’. The crucial structural change, as Trotter indicates, was the one that reduced the Council from 24 to 12. This reduction has made it so much easier for the likes of Parker/Marryat to get a majority, and rule via their own coterie on Council – even if this has been at the cost of sharply split voting patterns on key issues. That change, Anderton recalls, was introduced ten years ago, when Lesley McTurk came in as a ‘change manager’ to replace long serving CEO Mike Richardson, who retired in 2003.

McTurk was CEO during the term of former mayor Garry Moore and, Anderton claims, McTurk oversaw the retirement or constructive dismissal of almost all the senior managers on the Council. “All that institutional knowledge, all that built-up high quality governance that had won the city so many accolade was all gone in a very short period of time. We’re talking about four years.”

McTurk’s drastic innovations were supported by the Local Government Commission which – at the time – included Kerry Marshall, the recently appointed “Crown observer” who is now supposed to help the Council to heal its divisions. McTurk has moved on to become the CEO of Housing New Zealand, and was succeeded by Marryatt in the wake of his own controversial stint as CEO in Hamilton – which had included the promotion of the financially costly V-8 car race, some controversial large pay increases and a handsome exit payment that the Waikato Times recently reminisced about in this editorial:

Mr Marryatt has made enemies in high places. Columnist Joe Bennett has lampooned him and made some excellent points about the tendency of local authorities to imitate the corporate world when they are not a corporation, but just a public body which is handed ratepayers’ money to play with….

When he was in Hamilton, Mr Marryatt negotiated himself a generous exit package worth hundreds of thousands of dollars. It was known as the Marryatt “golden parachute”. One wonders whether he perhaps has a similar deal with the Christchurch City Council. If so, he could well soon be using it.

Beltway rumour has it that the current Council has about six weeks to get its act together – or else the government will take action. If true, that seems rash and unreasonable. A malaise ten years or more in the making can hardly be resolved in six weeks, and there is no milestone on the horizon via which the Council could prove it had suddenly, magically, been cleansed of dissent. To date, the feature routinely cited as evidence of the Council’s current dysfunctionality has been the “leaks” to the media – allegedly, by dissenting councillors.

In fact, as Anderton points out, you can count the number of leaks from Council on the fingers of one hand. More often, he says, the embarrassing information about the doings of the Parker/Marryatt/Ngaire Button coterie have come from OIA requests, subsequently published in the media. The recent revelations about Marryatt’s performance and pay review being a classic case in point:

Christchurch City Council chief executive Tony Marryatt was awarded a controversial $68,000 pay rise despite a steady decline in his performance reviews, official documents show…Last December, the council gave Marryatt a 14.4% pay increase, taking his salary to $538,529.

Documents released by the council under the Official Information Act show that Marryatt’s performance reviews have gone gradually downhill since 2009. His overall performance, excluding self-assessment, decreased from 4.3 out of 5 in 2009 to 3.9 in 2011. Marryatt’s ratings declined in six out of seven categories over his three performance reviews, based on anonymous reviews from councillors and senior management.

Leaks are not a cause of dysfunction – they are a symptom of it. With the Council almost equally split, one concern for Parker/Marryatt must be whether any maverick within their inner group would be willing to break ranks and seek personal advantage from being seen as the city’s saviour from its current leadership. In the meantime, none of the options on the table must be looking very attractive to Gerry Brownlee, Nick Smith and their colleagues in Cabinet.

“It is a hard call for them,” Anderton agrees. “They’re going to be tossing up between doing nothing – which is almost not an option if the Council gets worse, as it is possible it will. Putting in Commissioners is not the ideal solution for them. Holding new elections again? That’s not an ideal solution, either. But the one thing about elections is that at least [central government] can then say well, the people had their choice, and they’ve now only got themselves to blame.”

To date, Parker has shown few signs of being willing or able, to take the initiative. There is now no credibility remaining in the autocratic, secretive style of management that has been the hallmark of the Parker/Marryatt era. If Parker is to survive, he needs to break up his cartel and begin to act inclusively and co-operatively. Such a transformation seems unlikely, at this late stage. Instead, blind loyalty is likely to remain the focus. “And if that’s how it works,” Anderton concludes, “its not going to work.”

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Dr Mourad Dhina

In particular, the arrest of Mourad Dhina serves to highlight France’s very troubled and ambivalent relationship with the Arab Spring. Given the entwined relationships between the Algerian regime and elements within the French political infrastructure, the incident may also – arguably – be related to the financing of the re-election campaign this year of French President Nicolas Sarkozy, though such connections must only be speculative. (For this report on the Dr Dhina’s arrest, Scoop Political Editor Gordon Campbell contacted sources in London, Switzerland and elsewhere.)

Dhina was arrested by the French authorities at Orly airport on January 16th on the basis of a highly dubious extradition request by Algeria. The warrant contained allegations about contacts with extremist groups that Dhina had allegedly made between 1997 and 1999 in the course of his human rights work in Switzerland – activities subject to Swiss law, yet which have plainly not been a cause of concern to the Swiss authorities. Dhina has, in fact, been a resident of Switzerland since 1994 and has had links to that country since 1987. Five of his six children were born in Switzerland and all of his children and his wife enjoy Swiss citizenship.

In the course of his human rights work, Dhina has become a small but persistent thorn in the side of the Algerian regime. Dhina has two main vehicles for his human rights activity, both of them strongly committed to non-violent methods of social change. Firstly, he is executive director of Al Karama, a distinguished and influential Islamic human rights organization that lobbies Moslem governments throughout the Middle East and North Africa on behalf of the victims of state repression, and makes representations to the United Nations on their behalf. In the course of that work, Dhina and his colleagues at Al Karama (who, until early last year included the New Zealand lawyer Deborah Manning) has filed a General Allegation (a form of complaint) against Algeria to the UN Working Group on Disappearances, regarding the issue of the thousands of disappeared in Algeria in the course of the country’s civil war during the 1990s. This lobbying was on top of the submission to the UN of hundreds of individual cases of human rights violations committed by Algeria over the past 20 years, and the submission of information about the human rights situation in Algeria to the Human Rights Council, the Committee on Human Rights and the Committee against Torture.

Last October – and this is highly relevant to his current predicament – Dhina was strongly supportive of the arrest and questioning in Switzerland for alleged crimes against humanity of Khalid Nezzar, the Algerian general who was a central figure in the overthrow of the democratically elected Islamic government in Algeria in January 1992, and in the subsequent bloody civil war. Some commentators (such as the British academic and North African expert George Joffe) believe that the French/ Algerian collusion in the arrest of Dhina in January is a form of ‘payback’ for Nezzar’s embarrassment.

Khalid Nezzar

There is more to the picture, however. Dhina is also a founding member of the Rachad Movement, a loose umbrella group of Algerian former diplomats, ex-civil servants, journalists etc that seek the peaceful overthrow of the current regime – which has effectively been in power since the country won independence from France in 1962. On May 12 this year, Algeria will hold legislative elections, and – if there is to be any belated flowering of the Arab Spring in Algeria – Rachad would like to think that it would have a prominent role to play. In early 2010, Rachad’s website became the first political Internet website to be blocked by the Algerian regime.

Last year in a surprise move, France’s newly appointed Foreign Minister Alain Juppe allowed Rachad to open an office in Paris – partly as payback, as this article by the Menas news group suggests, for the open hostility of the Algerian regime to France’s leading role in the overthrow of Libyan dictator Mohammed Gaddafi.

The most significant move by France has been to allow the Rachad Movement to open an office in Paris. France has traditionally been opposed to being seen, at least publicly, to allow Algerian opposition parties and movements to operate on their soil. This decision is a major shift in French policy and one which is being regarded in Algiers with extreme anxiety. Rachad is the opposition movement that Algeria’s rulers most fear. Allowing it to open an office in France presents the Algerian regime with a new and very serious problem. As far as Juppé is concerned, this is now ‘pay-back’ time.

Alain Juppe

In which case, the arrest of Mourad Dhina could well be interpreted as being a further round of payback – this time by the Algerian regime itself, directed against Alain Juppe – and delivered by the regime’s close friends in the French Interior Ministry, whose chief Minister Claude Gueant, visited Algiers in December.

Claude Gueant

Would Rachad like to see countries like New Zealand that have friendly ties with France, to make diplomatic representations to France on Dr Dhina’s behalf, to urge his speedy release? “Yes. Definitely.” Rachad’s most prominent spokesperson, Mohammed Larbi Zirtouttold me by telephone from London. “Because we are just trying to tell France that Algerians are not against France, and that Rachad is not against France. We are just against those who want to keep Algeria under their hegemony. We thought that after the Arab Spring, that France would change its position. We thought that after Mr Juppe came to Foreign Affairs, things would change. But it seems that France is always governed by the Ministry of the Interior, and has been for about 130 years – both during and after the process of colonisation. That’s the problem with France.”

Mohammed Larbi Zirtout

Similar sentiments were expressed to me from Switzerland by Rachid Mesli, director of Al Karama’s Legal Department. “ We would like to see a consensus by democratic countries to stop implementing warrants which are made by authoritarian regimes. We would like to see democratic states request that Interpol respect Article 3 of its constitution, which states “It is strictly forbidden for the Organization to undertake any intervention or activities of a political, military, religious or racial character,…”.Extradition warrants such as the one served on Dr Dhina, Mesli says, “ are clearly violating this article.”

As mentioned, France has had a very difficult time coming to grips with the Arab Spring, especially when this has involved democratic movements for change in its former colonies, and against Francophone dictators. For instance, when the Arab Spring first began in its former colony of Tunisia a year ago, France chose to put itself spectacularly on the wrong side of history.

France’s then Foreign Minister Michèle Alliot-Marie not only defended the initial repressive response by the Tunisian President Zine el-Abidine Ben Ali , but offered him teargas, took a holiday in Tunis at the height of the demonstrations, travelled on the private jet of one of Ben Ali’s leading cronies and – even when his regime began to topple – suggested sending in French gendarmes to restore order. Amidst a storm of protest, she then resigned, and was replaced by Juppe.

Juppe proceeded to carve out a quite different direction for France in a speech to a symposium on the Arab Spring in Paris last April, beginning with an apology for its previous stance towards Tunisia. Juppe not only conceded that the revolutionary wave had been a “surprise” to France but went further : “For too long we thought that the authoritarian regimes were the only bastions against extremism in the Arab world. Too long, we have brandished the Islamist threat as a pretext for justifying to an extent turning a blind eye on governments which were flouting freedom and curbing their country’s development.” Astonishingly, Juppe then compared the Arab Spring favourably to the Islamic Golden Age. He said that while France does not have a policy of supporting “regime change”, it intends to speak up for human rights in the Arab world and to back the transitions to democracy in North Africa. Understandably, the Algerian generals were not amused.

Almost simultaneously, Nicolas Sarkozy sought to restore France’s standing within the Arab Spring by taking a vanguard role in the Western action against Libya. Again, the Algerian generals – who, right until the end, provided the last bastion of support for Gaddafi, and who supplied him with French – originated logistical support to help him fight French troops – were deeply critical of France’s new role, sensing the potential threat to their own survival. Yet even so, the two countries are still too entwined for such differences to become decisive. In stark contrast to Libya, do the cultural links between Algeria and France simply run too deep for France to ever take the same approach to Algeria that it adopted towards Libya ?

“Yes,” Zirtout says, “that’s definitely one of the explanations.” (And Zirtout should know. In 1995, he was Algeria’s ambassador to Libya, before resigning in protest at the Algerian regime’s actions during the civil war.) “Because lets not forget the culture and the French language – that’s the first thing to think about in when it comes to France’s foreign political relations. Any Francophone country is by definition part of the vital sphere of French interests.” Despite Gaddafi’s increasing ties to the West in the past five to six years, Gaddafi was still seen as being far from France because he had no cultural or linguistic connection to it. “Where there is French culture or language …its different. France has always said, and is still saying, that the second country after France – that speaks French and where French culture has a hegemonic position – is Algeria. Its not Canada, or Belgium or Switzerland. It is Algeria.”

Not that the regime in Algeria has ever been a compliant partner. Like two mutually suspicious gangster families, Algeria and France are as co-joined as those of the United States and Israel, and in similarly morally destructive ways. While the arrest of Dhina may be the product of a turf war between Gueant and Juppe, the motivations of the Algerians to strike at this time are less clear. The extradition request against him has been on the table for well over five years. During that time, has Dhina previously been able to pass through France without incident ? “Yes, definitely,” Zirtout says. Before and after Rachad opened its office in Paris, Dhina had been in Paris “at least three or four times, if not more. ”

So does Rachad itself regard the arrest as a personal payback for Dhina’s actions in the past against Khalid Nezzar and in highlighting the regime’s human rights abuses to the UN – or is this being seen as a pre-emptive strike against Rachad’s opposition role during the upcoming legislative elections in Algeria ?

Not surprisingly, Zirtout chooses to put more emphasis on the second point. “The main objective of the regime is to try and neutralise Rachad by excising one of its founders, and one of its important members. And to try and give this a legal appearance. The coming months are extremely crucial for the regime. Not only because of the elections, but because of the Arab Spring.” So far, he concedes, Algeria has not seen the democratic uprisings that have occurred in Egypt and much of the Middle East. Zirtout not only feels optimistic that these uprisings will ultimately occur, but even sees historical cause for optimism in the current delay. In 1952 and 1953, he says, there were prior simmerings in Tunisia and in Morocco before the Algerian revolution finally broke out in 1954. “ And then it became one of the greatest revolutions against colonialism in the past 60 years. ”

Why, at this time, has France decided to lend credibility to Algeria’s bogus extradition request? Well, he says, its simple. “One, they need the help of the Algerians – particularly financially speaking – in this critical year of the French presidential election. [But] not only the financial connection is important, but also the connection of the Algerian regime in France. Lets not fiorget that there are three million who are Algerian or who are originally from Algeria in France, and this can play a role and some of them are more or less, linked to the regime.” The role of North Africa in French domestic politics is not a fresh development. When Gaddafi was under threat last year, Zirtout points out, he reminded Sarkozy of his role in helping to finance the French election in 2007.

Finally though, the fate of Algeria will be determined by its own people – most of whom have never heard of Mourad Dhina or Rachad, or who regard some of its leaders as having connections to the FIS party, whose overthrow triggered the calamitous civil war. Perhaps the giant shadow of the civil war – that cost the lives of some 200,000 people – really serves to explain why the Arab Spring has been slow to arrive in Algeria. Even if Algerians resent the current repressive order, are they also more inclined than people may be elsewhere, to fear what the alternative might bring ?

“No, this is not the explanation, “ Zirtout insists. “That’s the propaganda coming from the regime. Also some in Europe try to broadcast it.” Rachad’s leadership, he claims, has little connection to the FIS – but which, in any case, was the democratically elected victim of the regime’s coup d-etat. “In fact the problem is not that. Its not because [the public] fear the alternative may be worse than the regime is now. That’s what the regime is trying to convey…but instead, the problem is the atomisation of the society.”

That social atomisation, he concludes, does have a link, effectively, to the war. “The regime has done everything to destroy the society. It has destroyed the political parties, destroyed the unions, destroyed the civil society, NGOS, everything.” Moreover, that process has included the creation of dummy unions and civil organizations that have a direct link to the DRS, the secret service. “That’s what the regime has done. For many people, they don’t know who is the genuine one, from the fake one, the false one that is the creation of the regime.”

This process of atomisation has been abetted by the regime’s control of the means of communication. The media are virtually captive in what is, in informational terms, something of a closed system. “All the newspapers are more or less controlled by the regime.” Incredibly, Zirtout adds, here is only one television channel, run by the state, in a nation of 40 million people situated close to Europe. “The alternative is not clear in the mind of the society.” In his view, this is not because Algerians fear the alternative – but because they find it difficult to imagine, let alone to realise. Which makes it all the important for the regime to neutralise those potential leaders, like Dr Mourad Dhina, who can articulate the future.

New Zealand does have a role to play in this affair. Along with other Western nations, we have an interest in ensuring the peaceful success of the Arab Spring, and should be pressing France to release Dhina. If only because, as Rachid Mesli of Al Karama suggests, we would thereby be showing our support for valid international arrest warrants – and not being tacitly supportive of those countries like France which, for their own reasons, are selectively choosing to lend credibility to bogus, politically motivated ones issued by their cronies.

ENDS

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He acknowledges Labour didn’t do well in provincial parts of New Zealand at the election and he wants that to change. Mr Shearer says he’d like to head to places like Napier, Timaru, and New Plymouth.

According to RNZ, the caucus meeting in Taupo will be discussing the party’s strategies on welfare reform and the retirement age, but no immediate announcements on changes to Labour’s policy stances can be expected, post retreat.

If this is slow and careful to some, it also looks like unsure and tentative to others – and with no change from the former reliance on focus groups and polling before policy positions are taken.

This really isn’t good enough.

New Zealanders cannot afford to wait in line to meet David Shearer, one by one. By taking the slow and tentative approach, Shearer is going to let himself be defined by the parliamentary agenda that begins in early February. In other words, the early perceptions of him will be shaped by his opposing tack to the government’s timetable and agenda, and not through messages of his own devising.

Welfare reform will prove to be as much a test for Labour as the ports of Auckland dispute. Polling will be telling Labour that the public is widely in favour of getting tougher with beneficiary entitlements, while at the same time being just as disturbed by income inequality and child poverty.

Given the state of the job market, cracking down on beneficiaries at this time flies in the face of everything that Labour traditionally represents – yet here, as in Britain, Labour seems very interested in finding a way NOT to oppose welfare reform, while still credibly wringing its hands about the plight of those being dealt to harshly by the Tories.

Cue spin along the lines of : “If we seek greater accountability from those at the top, we must also expect it from those at the bottom too, yada yada …” Instead of defending adult entitlements head on, Labour will try to re-focus the debate as being one about child poverty and jobs. Opposing welfare reform per se will be left to the Greens.

Famously during the holiday break, Trevor Mallard linked on Red Alert to a call to rethink Labour policy on welfare reform, one written for the Guardian by British Labour politician Liam Byrne.

This is no new position by Byrne. Since February of last year for instance, Byrne has been calling for such a change :

Labour will today announce that it is to accept some of the government’s key welfare savings next year, as the shadow work and pensions secretary Liam Byrne declares that reforms need to move at the “very fastest” pace.

In his first major speech since his appointment last month, Byrne will pledge to accept £2.5bn of the planned £3.4bn savings – those parts that are intended to increase incentives to work, and that will spread the making of savings around the overall system. Echoing Tony Blair’s declaration in 2002 that New Labour was “best what our boldest”, Byrne will say that voters in his deprived Birmingham Hodge Hill constituency demand a rapid pace of reform.

“When you look at things from where I stand in Hodge Hill, you have to say we were at our best when we were bold Labour. But while the business of reform might never have stopped, we weren’t driving permanently at top speed.”

In language which may surprise some in Labour circles uneasy at the pace of the coalition’s welfare reforms, he will add: “When you see the wasted potential every day; when you work with the children I serve, then you believe that no other pace of reform but the very fastest will do.”

Get it done, and get it done quickly – and on the whole Labour in Britain supports the bits about creating incentives to work. Will Shearer take the same route?

The first sign he may do so ( or not) will hinge on whether he scraps the extension of tax credits to the beneficiary poor that Labour took into the last election, mainly as a way of defending its flank against the Greens.

Traditionally, Labour has been the champion of the working poor, and not (so much) the beneficiary poor – which was why the Clark government (and Michael Cullen in particular)drew the initial sharp distinction between the needy in employment and the needy on benefits when it fashioned Working for Families.

With the election now over, will Labour back away from this election-bid gambit of support for beneficiaries? Was it always – like the promise to remove GST from fruit and vegetables – just a temporary measure to shore up its left credentials?

Unfortunately, the easy “rethinking” of Labour’s positions almost all appear to entail shifting rightwards from the positions staked out for election purposes. Is this what Shearer and his advisers really plan to do? That would be hard to believe and difficult to stomach for the remaining party faithful – who, surely want him to tack left, not right.

Clearly, we still have a lot to learn yet about David Shearer. If anyone in Napier or Timaru spots him in the coming weeks, please phone home.

ENDS

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The Crown is opposing bail for Megaupload CEO Kit Dotcom on the basis of (a) that he poses a flight risk and (b) he could recommence his operations if released. Neither seem to be very convincing arguments. By its very nature, the extradition battle is likely to be a lengthy one and if having money is held to be a decisive factor in being regarded as a flight risk, then bail would have to be denied to almost every white collar criminal who comes before the court.

Are the courts really prepared to keep Dotcom and his colleagues in custody for the entire extradition process? That would be a totally disproportionate infringement of the basic right of accused persons to liberty, until the charges against them are heard and proved. On balance, Dotcom poses neither a threat to society nor – given the presence here of his family, and his residency here – does he seem a likely flight risk.

Similarly, there seems little risk of Megaupload rising from the ashes of the FBI’s “Mega Conspiracy” any time soon. If bailed – and under supervision – Dotcom might even conceivably be able to help the authorities to untangle the entirely legal aspects of Megaupload’s operations, and help return that property to its lawful owners. These owners, as Russell Brown has pointed out, may include the likes of Kanye West, Will i am, Snoop Dogg and other less celebrated citizens whose lawful property will otherwise be frozen indefinitely in Megaupload’s cyberlocker until the charges against him and his colleagues are resolved.

As other commentators (including Salon’s Glen Greenwald) have also noted the FBI-led action against Megaupload was taken barely 24 hours after controversial two anti-piracy pieces of legislation ( the so called SOPA and PIPA bills) backed by entertainment industry lobbyists were withdrawn from the US Congress.

Critics insisted that these bills were dangerous because they empowered the U.S. Government, based on mere accusations of piracy and copyright infringement, to shut down websites without any real due process. But just as the celebrations began over the saving of Internet Freedom, something else happened: the U.S. Justice Department not only indicted the owners of one of the world’s largest websites, the file-sharing site Megaupload, but also seized and shut down that site, and also seized or froze millions of dollars of its assets — all based on the unproved accusations, set forth in an indictment, that the site deliberately aided copyright infringement.

In other words, many SOPA opponents were confused and even shocked when they learned that the very power they feared the most in that bill — the power of the U.S. Government to seize and shut down websites based solely on accusations, with no trial — is a power the U.S. Government already possesses and, obviously, is willing and able to exercise even against the world’s largest sites (they have this power thanks to the the 2008 PRO-IP Act pushed by the same industry servants in Congress behind SOPA as well as by forfeiture laws used to seize the property of accused-but-not-convicted drug dealers).

Julian Sanchez at the Cato Institute is also essential background reading on the Dotcom case and his concluding remarks are particularly interesting:

This is another reason the takedown-before-trial model is disturbing. Again, there’s strong evidence in the indictment that Megaupload’s conduct here was anything but innocent. But now imagine some other cloud storage site that comes under the crosshairs of the government or content industries. As I suggest above, they might have very good reason for only disabling specific, publicly distributed links to a copyrighted file in response to a takedown notice, rather than cutting off access to every user who has remotely stored the file, regardless of how they’re using it. At a trial, they’d get to explain that. If the site is shut down before its operators have an opportunity to even make the argument … well, that doesn’t bode well for investment in innovative cloud services.

So far, we have seen the New Zealand courts and Police acting in SWAT team-like helicopter raids that clearly show the Police have been consuming too many of the entertainment industry’s fine products, and colluding with the shutdown of this particular website. Megaupload appears to have been singled out partly for the flamboyance of its owners, which serves all the better to deter les autres such as Mediafire and yes, even Youtube itself – whose content remains an untidy mix of legally and illegally uploaded material.

When and if this case ever gets to a US court, Dotcom’s lawyers should have a fine old time arguing why their operation has been singled out for draconian action, when (apparently) the likes of Youtube are able to quietly devise revenue sharing ad content and other ruses that enable it to co-exist (albeit uneasily) with the same entertainment industry that is now baying for Dotcom’s blood. Our own courts should decline to be party to this particular lynch mob. Dotcom should be released on bail, to oppose the extradition, and ultimately if necessary, to prepare his defence against these charges.

As Glenn Greenwald says, this is what is called due process in the US. In times past, the US courts used to adhere to it. Not so much today. In a recent op ed in the Washington Post (headlined “10 Reasons The U.S. Is No Longer The Land of the Free”) law professor Jonathan Turley itemised the excesses of state power that the Bush and Obama administrations have created (and in some cases used) since 9/11.

These include: the assassination of US citizens, indefinite detention, arbitrary justice, warrantless searches, the use of secret evidence, war crimes and torture, the widespread monitoring and surveillance of ordinary citizens, the use of secret courts, immunity from judicial review and extraordinary renditions. Turley’s conclusions are worth reading:

An authoritarian nation is defined not just by the use of authoritarian powers, but by the ability to use them. If a president can take away your freedom or your life on his own authority, all rights become little more than a discretionary grant subject to executive will.

The framers lived under autocratic rule and understood this danger better than we do. James Madison famously warned that we needed a system that did not depend on the good intentions or motivations of our rulers: “If men were angels, no government would be necessary.”

Benjamin Franklin was more direct. In 1787, a Mrs. Powell confronted Franklin after the signing of the Constitution and asked, “Well, Doctor, what have we got — a republic or a monarchy?” His response was a bit chilling: “A republic, Madam, if you can keep it.”

Since 9/11, we have created the very government the framers feared: a government with sweeping and largely unchecked powers resting on the hope that they will be used wisely.

Frankly, the New Zealand courts should not be serving as a dutiful helpmate of such a system. Dotcom should be bailed.

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