Tuesday, October 16, 2012
Alert over 'Kafkaesque' secret justice system that would allow British government 'to play national security card' to avoid scrutiny
A secret justice system ‘straight from the pages of a Kafka novel’ is planned by ministers, an influential report has claimed.
Controversial proposals to conduct court cases and inquests behind closed doors would allow the Government to ‘play the national security card’ to avoid being scrutinised, said Amnesty International.
The group’s 50-page dossier is a withering assault on the Justice and Security Bill, due to be debated imminently by the House of Lords.
Critics including the Daily Mail and civil liberties groups have campaigned against the plans.
It has raised fears that inquests into police shootings, soldiers killed by so-called ‘friendly fire’ and other hearings with the potential to embarrass the Government will be shrouded in secrecy.
Some campaigners have gone so far as to say that the legislation is a threat to centuries of legal freedoms and even our democracy.
Under the Bill, judges will be able to listen to more civil cases in secret without claimants being permitted to hear evidence.
Amnesty International’s Alice Wyss said the Bill posed ‘a real threat to the principles of fairness and open justice’.
She said: ‘It’s already bad enough that secret procedures have been allowed to creep into the justice system but the Government is now trying to extend secret justice to an unprecedented degree.
‘It wants a system where it can simply play the “national security” card whenever it wants to keep things secret.
‘Evidence that is kept secret, lawyers that can’t talk to you: it’s a secret justice system straight from the pages of a Kafka novel.
‘This Bill will enable the Government to throw a cloak of secrecy over wrongdoing.’
A Cabinet Office spokesman said: ‘Nothing that’s currently heard in open court will be heard in secret in future.’
Venezuela: the left’s heart in a heartless world
The Western left’s bizarre love affair with the Bonapartist Hugo Chavez speaks volumes about its intellectual disarray and desperation
For an insight into the collapsed standards, declining intellectual rigour and desperate opportunism of the modern Western left, look no further than its fawning over Hugo Chavez of Venezuela. In the past, much of the left - both the radical sections and even some of the stuffy Stalinist crowd - was highly critical of the Bonapartist antics of populist Latin American leaders. They critiqued the way these leaders mobilised the masses to give their narrow, bourgeois, largely state-orientated policies a gloss of legitimacy or the appearance of revolutionism. But now, so isolated is the Western left, so bereft is it of a domestic constituency or anything approaching a political plan, that it sees in Chavez’s twenty-first-century Bonapartism something ‘genuinely progressive’.
This week, Chavez won a fourth term as president of Venezuela. He did not repeat his landslide victory of 2006, instead winning a safe but not-especially-astounding 54 per cent of the vote (on a turnout of 81 per cent). His supporters among Western radicals immediately went into hyperbolic hyperdrive, talking about the ‘revolution’ that Chavez has led in Venezuela and commending him for ‘challenging imperial domination’. Chavez’s posturing against US influence in Latin America and his implementation of social-assistance programmes for the Venezuelan poor are variously described as ‘radical’, ‘progressive’ and part of his broader ‘profoundly revolutionary struggle’. He is compared to Simon Bolivar, the nineteenth-century political leader who liberated much of the Latin American continent from Spanish rule, or to Che Guevara, the more recent Argentine radical beloved of t-shirt sellers in hipster communities across the West.
Yet these accolades for Chavez tell us far more about the state of mind, and deep, existential needs, of the disarrayed left than they do about any revolution taking place in Venezuela. Because in truth, Chavez has far more in common with the populist style of the nationalist leadership pioneered in Latin America by Juan Peron, whom the left castigated for his exploitation of the masses, than he does with yesteryear’s revolutionaries. Juan Peron was an Argentine military leader who, after playing a role in the army’s 1943 seizing of power from the corrupt regime of Ramon Castillo, was elected president of Argentina in 1946, 1951 and briefly again in the 1970s. His rule - which came to be known as Peronism and was influential among populist left-wing leaders in Latin America - consisted of a combination of anti-Western actions, concessions to the working classes and the poor in the form of higher wages and trade union recognition, and populist demagogy. Through this process, Peron was able to build up an impressive mass base of support for his pursuit of nationalist capitalist development in Argentina.
Peron’s political approach was archetypal Bonapartism - the name given by Marxists to leaders who take and secure power when no single class is in a position to do so; leaders who try to use reformist measures to win the radical support of the more populous classes. That is, the Bonapartist style can emerge when the capitalist class is too weak to exercise power in its own name and when the working class is too immature or lacking in political leadership to do anything about it. In The Eighteenth Brumaire of Louis Bonaparte, Marx describes how, following the defeat of the working class in the European revolutions of 1848, Louis Bonaparte, nephew of Napoleon, seized power in France on the back of the lumpenproletariat (or what the decidedly un-PC Marx described as ‘the scum, offal, refuse of all classes’). At a time when the working class had been roundly beaten and much of the European bourgeoisie was, in Marx’s term, in a state of ‘ruin’, Louis Bonaparte was able to depict himself as being above the class struggle and to ride to power through populist appeals to an ‘indefinite, disintegrated mass’ - the poor, disaffected, lumpen. In a modern-era spin on such Bonapartism, Peron in 1940s Argentina built his political success on mobilising sections of the working classes and exploiting the backwardness of Argentina’s then largely new and fast-growing proletariat, creating a base upon which he could create a ‘New Argentina’ and pursue a nationalistic form of economic development.
Of course, Peron’s rule was not without substance. There was a strong sense of national independence under Peronism, a certain amount of redistribution of wealth, the state-assisted creation of trade unions, increased social welfare. However, in a signal of Peron’s fundamental remove from the classes he claimed to represent, when Argentina hit rough economic waters in the early 1950s, and went in search once more of foreign investment, the Peron regime was quite happy to force down the wages it had previously raised, attack trade unions, and crush the workers who went on strike in response to these developments. There followed a foreign-backed coup in 1955, the fleeing of Peron, and years of dictatorship.
Chavez’s Venezuela has many Peronist elements, except Chavez is an even more unconvincing leader of the workers than Peron was. Echoing Peronism, Chavez’s Venezuela is likewise built upon the populist mobilisation of large sections of the poor by a fairly narrow stratum of society that presents itself as being fundamentally above the old competing classes. Chavez’s rule is likewise underpinned by frequent posturing against external powers and foreign ‘neoliberalism’ (though the so-called imperialists Chavez faces are a very pale version of the ones Peron took a stand against in the immediate postwar period); it also pursues the redistribution of wealth to a certain extent, and has developed social-welfare programmes (though Chavez does not pursue meaningful capitalist economic development in the way Peron did); and Chavez’s regime is shot through with populist demagogy, where Chavez has proved himself far more adept at tapping into the passions and prejudices of certain sections of the public than he is at laying out a convincing radical political programme. Both Peronist Argentina and Chavez’s Venezuela saw huge growth in the state and state expenditure.
But there is one enormous difference between the Peronist periods of the past and the Chavez era today - and that is in the response of the Western left. Much of the left was stingingly critical of Peronism. In a 1958 essay titled ‘What is Peronism?’, published in American Socialist, the Polish-US communist Bert Cochran described Peronism as ‘essentially a pragmatic manoeuvring between social classes at home and between rival powers abroad, concocted into a pseudo-ideology by grandiloquent rhetoric and noisy demagogy’ (1). In the 1970s, a socialist essayist described how Peronism, far from being revolutionary, was ‘fundamentally reformist, emphasising harmony of interests between classes and the role of the state as the neutral mediator between capital and labour’; Peronism actually ‘prevented social conflict… from getting out of control’. Across the Western left, there were serious critiques of Peronism, whether devastating ones or simply disappointed ones; certainly there was very little naive talk of Peron leading a ‘profoundly revolutionary struggle’, as many Western radicals now claim about Peronite Chavez.
This points to a dramatic change in the Western left, to extraordinarily lowered horizons and a dearth of critical thinking among modern radical writers and activists. The Western left’s uncritical embrace of Chavez is driven first by its desperation to find some evidence, somewhere, that old-style left-wing rhetoric still has purchase. With left-wing ideals in disarray around the world, and with the Western left increasingly alienated from and disappointed by its allegedly apathetic domestic populations, left-wingers fantasise that Chavez’s Venezuela is keeping the socialist dream alive, offering ‘lessons to anyone interested in… new forms of socialist politics in the rest of the world’. Venezuela has become a kind of haven in a world that the left finds increasingly heartless, or just confusing. And secondly, the left’s enamourment of Chavez is informed by its increasingly uncritical attitude towards the state. For a left convinced that change is impossible without the leadership and favour of the state, which now views the state as the main agent of progress, Chavez’s state-orientated policies can seem exciting, even ‘revolutionary’.
In essence, then, there is a double self-deception in the Western left’s love affair with Chavez. It is deceiving itself about the reality of what is happening in Venezuela. And it is deceiving itself about, and intellectually distracting itself from, the profound crisis of radical thought that is widespread in the world today.
Free speech rights in flux in Australia
Everyone has their own little megaphone and when herded together the noise can be louder than the racket from the most strident demagogue or shock jock in earshot. Now the law is being asked to step in and draw some lines in the sand, or on the wall, or in the cloud, or somewhere.
In England the Department of Public Prosecution and a bunch of "stakeholders" - lawyers, journalists, police - are trying to come up with guidelines as to what constitutes "offensive" communications on open or social media networks.
In our own lively backyard, the NSW Attorney-General, Greg Smith, has commissioned a "working group" to examine the impact of social media on the sanctity of the criminal trial process and what can be done about it.
These are examples of authorities flailing about and trying to look as though they are doing something. Whatever emerges by way of worthy recommendations, it is unlikely that this genie is going to get back in its bottle.
In Canberra, our High Court is being asked to decide where the freedom to speak stops, particularly when it comes to the implied, but not enshrined, constitutional right of free speech on matters of government and politics.
For instance, does a person in breach of a council bylaw have a right to preach fire and brimstone god-bothering sermons on the street, to the annoyance of shopkeepers and shoppers?
Even more "out there", does the constitutional protection extend to someone, who in defiance of the criminal law, sent offensive and distressing messages through the mail to the relatives of Australian soldiers who have been killed in Afghanistan?
These are two actual cases heard this month by the same bench of the High Court (French CJ, along with justices Hayne, Heydon, Crennan, Kiefel and Bell). The decisions in both are reserved.
In the offensive letters case radical Muslim cleric Man Haron Monis was found guilty in April last year of using the postal service to cause offence and to menace and harass. In this instance it may have been difficult to glean the precise meaning of the letters but there was the suggestion that the dead soldiers were murderers. Amirah Droudis was charged with aiding and abetting.
Apart from the relatives of dead Australian Defence Force personnel, letters were also received by the relatives of an Austrade official who had been killed in the bombing of the Marriott Hotel in Jakarta on July 17, 2009.
There was lots of argument around what constitutes offensiveness. In its submission the Commonwealth said the mail could have provoked retaliation, including "civil commotion or riot".
David Bennett, QC, for Droudis, said "it is very easy to discard what one doesn't want to read". In that sense he was suggesting that not reading the letters was akin to turning off the radio if Alan Jones got on your wick.
But are these distressing letters on political matters constitutionally protected or, put another way, did this part of the criminal law dealing with offensive articles in the post exceed the legislative power of the Parliament because it infringed the implied right of free speech?
The trial judge thought the legislation did burden the freedom of communication about government or politics, but that it was nonetheless reasonably appropriate. The Court of Criminal Appeal basically agreed.
Now it's the High Court's turn, and it has the last say.
The Adelaide preachers Caleb and Samuel Corneloup have had a better run in the courts so far. An Adelaide City bylaw was used to stop the brothers Corneloup proselytising in a loud and aggressive manner in Rundle Mall. No one in Adelaide is allowed on the streets to "preach, canvass or harangue" without a permit.
The Corneloups won in the South Australian District Court, and the City of Adelaide lost an appeal in August last year, when the full Supreme Court found the bylaw was inconsistent with the implied constitutional freedom of political communication. The preaching, it appears, contained a good dose of political content. Again, the High Court will have the last word on whether the bylaw is an unreasonable burden on free speech.
What is refreshing is that these two cases, which are at the forefront of a free speech advance party, don't involve the new media. The "champions" are users of snail mail and street corners. How fitting it is that these overlooked communication devices are at the cutting edge of free speech jurisprudence.
Justice Michael Kirby has been relatively quiet since leaving the High Court but he was momentarily revived in the course of this bout of litigation. Here he is in an earlier free speech case. He's worth quoting at a little length because he rings a few bells for me:
"One might wish for more rationality, less superficiality, diminished invective and increased logic and persuasion in political discourse. But those of that view must find another homeland. From its earliest history, Australian politics has regularly included insult and emotion, calumny and invective, in its armoury of persuasion. They are part and parcel of the struggle of ideas.
"Anyone in doubt should listen for an hour or two to the broadcasts that bring debates of the Federal Parliament to the living rooms of the nation. This is the way present and potential elected representatives have long campaigned in Australia for the votes of constituents and the support of their policies. It is unlikely to change.
"By protecting from legislative burdens governmental and political communications in Australia, the constitution addresses the nation's representative government as it is practised. It does not protect only the whispered civilities of intellectual discourse."
Abusing the logic of human rights in Australia
Welfare reform is now a human rights abuse, according to the welfare lobby and the special interest groups they represent.
At the heart of the matter are the Gillard government’s reforms to Parenting Payment, which will move tens of thousands of parents of school-aged children onto the less generous Newstart Allowance, which also has tougher job search requirements. The reforms were passed by the Senate on Tuesday.
This move will save taxpayers more than $700 million over the next four years and will improve the incentives Parenting Payment recipients have to move from welfare to work.
However, these sensible and relatively modest reforms have been branded a potential human rights abuse worthy of the United Nations’ attention by the welfare lobby, led by the Australian Council of Social Service (ACOSS) and the welfare-dependent parents affected by the reforms.
They argue that the government’s legislation violates Article 9 of the International Covenant on Economic, Social and Cultural Rights, which states that everyone has a right to social security, including social insurance.
Additionally, the welfare lobby alleges that the government’s reforms violate the ‘principle of non-retrogression,’ which means if you have a right, that right cannot be reduced or removed.
By combining Article 9 of the convention with the principle of non-retrogression, the welfare lobby has added 1 + 1 to get 3.
A right to social security plus the principle of non-retrogression supposedly means if you receive welfare payments (in this case Parenting Payment), you can’t have that payment removed or reduced, which is what would happen if Parenting Payment recipients are moved to Newstart Allowance. Hence, the welfare lobby concludes, the government’s reforms are an abuse of human rights.
Clearly there is some very dodgy logic being employed here.
First, the right to social security is not being violated – people are simply moving from one social security payment to another – in this case, from Parenting Payment to Newstart.
Second, the principle of non-retrogression is not being violated – the right to social security as outlined in Article 9 is not being reduced or removed at all. The reforms do not ban or prevent people from receiving welfare – the only change is to the welfare payment they receive.
Third, Article 9 is being interpreted incorrectly – if you accept that everyone has a right to social security, it does not follow that everyone, or even a particular group of people, has a right to a specific payment paid at a specific rate – in this case, Parenting Payment.
Individually, each of these points repudiates the welfare lobby’s claims that the government’s reforms are a human rights abuse. Together they smash the claim out of the park.
Parents of school-aged children who move from Parenting Payment to Newstart Allowance should not be branded as victims of human rights abuse. What they really are is just another special interest group wanting to take more money out of taxpayers' pockets.
Political correctness is most pervasive in universities and colleges but I rarely report the incidents concerned here as I have a separate blog for educational matters.
American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of other countries. The only real difference, however, is how much power they have. In America, their power is limited by democracy. To see what they WOULD be like with more power, look at where they ARE already very powerful: in America's educational system -- particularly in the universities and colleges. They show there the same respect for free-speech and political diversity that Stalin did: None. So look to the colleges to see what the whole country would be like if "liberals" had their way. It would be a dictatorship.
For more postings from me, see TONGUE-TIED, GREENIE WATCH, EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, GUN WATCH, AUSTRALIAN POLITICS, DISSECTING LEFTISM, IMMIGRATION WATCH INTERNATIONAL and EYE ON BRITAIN (Note that EYE ON BRITAIN has regular posts on the reality of socialized medicine). My Home Pages are here or here or here. Email me (John Ray) here.