Wednesday, October 20, 2010

Law & Order's Siren Song

 The more corrupt the republic, the more numerous the laws.  
—Tacitus [56-117], Roman senator & historian, in Annals

If the jury have no right to judge of the justice of a law of the government, they plainly can do nothing to protect the people against the oppressions of the government; for there are no oppressions which the government may not authorize by law.
—Lysander Spooner [1808-87],
political theorist & author, in Trial by Jury

The state represents violence in a concentrated and organized form. The individual has a soul, but as the state is a soulless machine,
it can never be weaned from violence to which it owes its very existence.
—Mahatma Gandhi [1869-1948], leader, Indian Independence movement

One of the current strategies of a government or presidential candidate to get (re)elected, especially in the Age Of Terrorism, is to point out that they are for law and order, and more so than the opponent. The focus then becomes on who is more for law and order, and the whole election campaign becomes reduced to one issue. 

Consider the response of the prime minister of Canada, Stephen Harper, now leading a minority Conservative government, and looking to seek a majority in the next general election. In his way is the Liberal Party, which has accused it of not really being supportive of the police and its needs, in Harper's law and order agenda ignoring real police needs.

Thus, not surprisingly, in preparation for for the next by-election, which the Globe & Mail newspaper says is scheduled before the end of this year, the prime minister has selected the former police commissioner of the province of Ontario. In  PM touts Fantino as law-and-order candidate, Mr. Fantino remarks in the prime minister's defense:
The Prime Minister has advanced a law-and-order agenda, and he’s “very connected with the law enforcement community,” the candidate said, adding that he’s running federally rather than provincially because of his national experience with operations such as anti-terrorism initiatives. 
 “I think this is the place for me,” Mr. Fantino said.
No doubt it might be. Governments like passing laws, for the reason that it seems as if they are doing something important, vibrant, including restoring order, peace and good government. So, each year democracies and autocracies alike pass a multitude of laws, many of them hinging on the supremacy of law and order, which often translates in the mind of the populace to good government. Today, it seems that governments act not so much for the people as for the elites and the state apparatus that protects them.

As do the courts. It's the Siren song of law and order. Consider the recent decision from Canada's highest court, the Supreme Court of Canada: On October 8th, 2010, the court ruled 5-4 that a person being questioned (interrogated) by the police does not have a right to have counsel present during such police procedures. ( The Court's full decision can be found here.) 

Siren Song: "The Siren" by John William Waterhouse (circa 1900).
The Siren is depicted as a fish-chimera.
In a ruling for the majority, Madame Chief Justice Beverley McLachlin wrote:
Any suggestion that the questioning of a suspect, in and of itself, runs counter to the presumption of innocence and the protection against self‑incrimination is clearly contrary to settled authority and practice. The police are charged with the duty to investigate alleged crimes and, in performing this duty, they necessarily have to make inquiries from relevant sources of information, including persons suspected of, or even charged with, committing the alleged crime. While the police must be respectful of an individual’s Charter rights, a rule that would require the police to automatically retreat upon a detainee stating that he or she has nothing to say would not strike the proper balance between the public interest in the investigation of crimes and the suspect’s interest in being left alone.
Writing for the minority, Justice Ian Binnie said:
A detainee is entitled to a further opportunity or opportunities to receive advice from counsel during a custodial interview where his or her request falls within the purpose of the s.10(b) right (i.e. to satisfy a need for legal assistance rather than delay or distraction), and such request is reasonably justified by the objective circumstances that were or ought to have been apparent to the police during the interrogation.
The other three dissenting judges, Justices Louis LeBel, Morris Fish and Rosalie Abella, remarked in good conscience regarding Section 10 (b) of the Canadian Charter of Rights and Freedoms, which clearly reads, “Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right": 
S’s right to counsel was infringed because the police prevented him from obtaining the legal advice to which he was entitled. His access to legal advice would have mitigated the impact of the police’s relentless and skillful efforts to obtain a confession from him. This breach of S’s right to counsel went to the core of the self‑incrimination interest that s. 10(b) is meant to protect. Under our system of criminal justice, the state bears the sole burden of proving the guilt of the accused. This basic precept finds expression in the presumption of innocence and the right to silence. Both rights are constitutionally protected. It follows inexorably that a detainee under police control is under no obligation to cooperate with a police investigation or to participate in an interrogation.
What is surprising, or perhaps not, is the lack of  concerned commentary in the mainstream press. Other than a brief note, such as this one in the Globe & Mail, on the ruling, there are no editorials or commentaries on this ruling. The media's silence is telling. Such silence could lead to a further erosion of individual rights and freedoms, guaranteed in Canada's Constitution, the Charter of Rights and Freedoms, the same Charter that the high court cited in the above judgment.

I look back at the historical importance of President Abraham Lincoln's famous Gettysburg Address (November 19, 1863), which was a turning point in the American Civil War: It stated the noble principle, "that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth."

It might not perish, but it might get roughed up in the next few years. The appeal to legalism by governments is strong today, as it is in every period of history. In the Encyclopedia Mythica, Micha F. Lindemans writes about the Sirens:
In Greek mythology, the Sirens are creatures with the head of a female and the body of a bird. They lived on an island (Sirenum scopuli; three small rocky islands) and with the irresistible charm of their song they lured mariners to their destruction on the rocks surrounding their island (Virgil V, 846; Ovid XIV, 88).
The Argonauts escaped them because when he heard their song, Orpheus immediately realized the peril they were in. He took out his lyre and sang a song so clear and ringing that it drowned the sound of those lovely fatal voices. When on another journey the Odysseus' ship passed the Sirens, had the sailors stuff their ears with wax. He had himself tied to the mast for he wanted to hear their beautiful voices. The Sirens sang when they approached, their words even more enticing than the melody. They would give knowledge to every man who came to them, they said, ripe wisdom and a quickening of the spirit. Odysseys' heart ran with longing but the ropes held him and the ship quickly sailed to safer waters (Odyssey XII, 39).
I do not want to put too fine a point on the myths of the Sirens or over-use its rich symbolism, but I must do so for the sake of the argument. The Siren song of law and order is luring long-standing democracies like Canada to destruction of its democratic ideals on the rocks of a statism. The song appeals to our primary instincts, appearing beautiful, haunting and harmonious. But it is full of false notes. False desires.

Such desires if followed to the extreme, would lead to a death blow to the values of liberty, equality and human dignity. That would benefit no one, including the lawmakers.

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