Criminalising dissent: a triumph of neoliberalism

By   /   April 11, 2013  /   21 Comments

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We’re sailing in dangerous territory when the government is prepared to extend the criminal law to protect economic rights, and the economic rights of foreign companies at that, and supress social and political rights.

155777_10151330626481372_718517669_nWhat’s a crime and what makes a criminal? The criminal law defines crimes and convictions make criminals, but understanding crimes and criminals isn’t that clear. Political, philosophical and economic values anchor how we think about crimes and criminals, but values shift from group to group and individual to individual. That makes defining and explaining crimes and criminals pretty faulty. Luckily, the government’s here to impose crimes and make criminals and, for the left at least, that says a lot about what makes a crime and a criminal.

Simon Bridges revealed to Q+A that the government plans on criminalising offshore protests under the Crown Minerals (Permitting and Crown Land) Bill.* It’s a gross attack against freedom of expression, but the amendment will receive neither Bill of Rights vetting nor Select Committee scrutiny.** That’s a constitutional disgrace, but so very, very National.

Criminal systems are moral, retributive and establishment. Moral in that they reflect the dominant values of the community, retributive in that they punish offences against those values and establishment in that criminal systems are a means of maintaining the dominant order. The political, philosophical and economic context is going to determine what the system’s morals are, what form retribution takes and the nature and character of the establishment.

So, crimes – in their crudest forms – are things that are repugnant to society or a threat against the establishment.*** I’m struggling to see how Elvis Teddy-style protest fits the criteria, but I’m looking at it wrong: this is about neoliberalism and the triumph of economic rights over social and political rights.****

Neoliberalism is all about freedom, apparently. But freedom for who? Hayek argued that liberty is maximised when coercion is minimised. However, that’s an argument for a small state – not the extension of social and political rights. Neoliberalism and its leading evangelists extend personal freedom in property rights and contract only. In all other situations, economic rights will prevail. In the current situation, economic rights have prevailed over the right to protest.

We’re sailing in dangerous territory when the government is prepared to extend the criminal law to protect economic rights, and the economic rights of foreign companies at that, and supress social and political rights. It’s dangerously authoritarian because the criminal law is at the heart of the state’s coercive power. Usually, criminalising dissent signals a drowning order. I don’t think that’s true here. Instead, I think the meek response outside of the blogosphere, committed leftists and legal purists signals that the government’s plans represent an affirmation of the dominant order.*****

 

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*The wording of the provisions doesn’t explicitly mention protest, but in practice it will capture offshore protests.

**The amendment will be made by supplementary order paper.

***Crimes sometimes have a utilitarian aspect, for example we criminalise some actions in the interests of public safety. You can argue that the government’s amendment is to protect public safety – that’s laughable and shows a complete disregard for realpolitik.

****New Zealanders are guaranteed the right to freedom of expression and freedom of peaceful assembly in the Bill of Rights, but there’s no guarantee of any economic rights. There is also a similar guarantee in the International Covenant on Civil and Political Rights (which the Bill of Rights ratifies) and similar statutory schemes overseas. It is rare to find an economic right.

*****Am I being too pessimistic?

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About the author

Morgan Godfery

Morgan Godfery - Te Pahipoto, Lalomanu (Samoa). Morgan is based in Wellington and is a political writer specialising in Maori politics. Better known as the author of Maui Street, Morgan spends too much time following international politics, indigenous peoples and TV. He is humbled to be a part of New Zealand’s best blogging line up.

21 Comments

  1. Sizemik says:

    ****Too pesimistic? . . . Not at all. I believe it’s even slightly dangerous to distinguish economic rights from Human Rights, because for 99+% of the population they are one and the same. Economic rights can be granted to companies, entities, non-people, fair enough. But it requires a fairly tortured path to arrive where an “entity,” a “thing,” assumes economic rights that violate individual Human Rights deliberately and repeatedly.

    Let’s not be afraid to say it . . . I’m not going to wait until the birds are eating my eyeballs, so to speak. Economic rights are getting hotly contested on the beleaguered battlefield of global economic instability, because the advantages are huge and tempting, not to mention essential. In that climate, Human Rights law is an “externality” to the entity, the corporation, and these are normally “expensed.” Thus we see the economic rights of the corporate seeking (ahem), the compliance of the legislature – Government. And we all know the family name of that marriage, even if it’s not formalised.

    Fascism.

    • Morgan Godfery Morgan Godfery2 says:

      Thanks for your comment. I agree that for most people human rights and economic rights are one in the same. Economic rights usually aren’t regarded as fundamental human rights though. Certainly not in the same way that the right to freedom of expression is.

      Economic rights aren’t procedural rights. Something that the drafters of our Bill of Rights were acutely aware of. The thinking was that rights outside of procedural rights are too wide, often arbitrary and open to unprincipled extension. It’s hard to disagree with that, especially in the case of an economic right.

      Given that, it’s bloody dangerous for the government to elevate periphery rights over fundamental human rights. It goes against the international consensus on human rights. Then again, it’s right in line with international economic consensus.

  2. Gosman says:

    A key component of right wing political thinking is the protection of property rights and up holding contracts.

    If the State sells prospecting licenses to someone those people have the right to expect their ability to carry out what they purchased will be protected by the State.

    The right of protest should not take precedence over the right to carry out your lawfully purchased commercial activity. That is the basic principle behind this law change.

    • Draco T Bastard says:

      What if the people don’t want to extend that right and the government has gone against that will? That is, after all, what the protests are about.

      At that point I’d say that the people who purchased those licenses don’t have those rights and should be refunded.

      • Gosman says:

        If we didn’t live in a democracy I’d agree with you. But we do, so the rule of law and sanctity of property rights is important. That is why I support resolving Treaty of Waitangi claims. A contract and property rights were breached.

        • Draco T Bastard says:

          The law isn’t what you want it to be but what the people as a collective (that’s what makes it a democracy) want. This being true what you’re actually saying there is that we don’t live in a democracy.

          • Gosman says:

            Majoritarianism is not the same as liberal democracy. Just because the majority of people want to do something doesn’t give them that right. For example if the majority of NZers decided to conficate Maori land would that be right?

          • Draco T Bastard says:

            That is why we have a constitution first – to broadly define what is right and what is wrong. And we do that by referenda as well.

            Liberal democracy is nothing more than elected dictatorship which inevitably works only for the rich and powerful. As we’re seeing with this criminalising of protest.

    • Morgan Godfery Morgan Godfery2 says:

      And that principle is flawed. There is a right to carry out prospecting (under the terms of any license), but not to the extent that it abrogates fundamental human rights. That’s what we have a Bill of Rights for – to set a minimum standard that the state must comply with.

      • Gosman says:

        It is a fine line. If you allow people to physically stop people from exercising their property and/or contracts you risk a Zimbabwe style land invasions for political ends.

        • As opposed to living in a Somalian libertarian nirvana? Hmmmm, that one isn’t going to well , is it?

          • Gosman says:

            We have had this discussion before, which you seemingly have forgotten.

            Libertarianism does not equate to Anarchy and vice versa.

            If you discuss the matter with any first year political studies student they should confirm this with you.

            On top of this Somalia is not even an Anarchic society. It has a weak, but not nonexistent central government. It also has a number of strong sub state institutions that enforce various laws.

            Hopefully now you can move on from using this rather simplistic red herring argument.

          • “On top of this Somalia is not even an Anarchic society. It has a weak, but not nonexistent central government. It also has a number of strong sub state institutions that enforce various laws.

            Hopefully now you can move on from using this rather simplistic red herring argument.”

            Perhaps. But my “red herring” (Somalia), swims alongside yours (Zimbabwe).

          • Gosman says:

            Ummmm…. no Frank it doesn’t.

            You might want to read a post before going off on weird tangents trying to attack it.

            I stated there is a fine line protecting an individuals right to protest versus peoples right to carry out their legitimate business.

            Simply because you don’t like something doesn’t mean you are entitled to carry out Zimbabwe style (note the word style) land invasions.

            Where you got Somalia and libertarianism fom that is anybody’s guess.

  3. Draco T Bastard says:

    Moral in that they reflect the dominant values of the community,

    That doesn’t make them moral, merely popular.

    Neoliberalism is all about freedom, apparently. But freedom for who?

    There’s actually two questions there:
    1.) Freedom for whom?
    2.) Freedom to do what?

    The answers are: Freedom for the rich to stomp all over the poor.

    That’s what all those law changes that trampled over the rights of the workers (90 day fire at will bill, the WB law changes to dependent contractors in the movie industry and the more punitive social welfare) are all about.

    Instead, I think the meek response outside of the blogosphere, committed leftists and legal purists signals that the government’s plans represent an affirmation of the dominant order.*****

    I don’t think that you’re too pessimistic but I do think you’re wrong. I think the lack of response is simply because people feel powerless. Not surprising really, neither the MSM nor the government listen to them and so their concerns are never heard.

  4. Afewknowthetruth says:

    The disgraceful state of the law in NZ and the shocking state of the planet are the result of smart-alec lawyers in the US in the late1800s arguing that a corporation had the same rights as a human, and bought-and-paid-for politicians agreeing. After that, smart-alec lawyers argued that corporations should have more rights than humans. And again, bought-and-paid-for-politicians agreed.

    Now this planet is run by corporations, for the benefit of corporations, and the effect of commercial activity on humans and other forms of life no longer counts for anything. Hence, meltdown of the planet to the point of uninhabitability within a few decades.

  5. Another David says:

    Definition of Simon Bridges – ambitious yes man

  6. Countryboy says:

    Neoliberalism , from what I can tell , needs a delivery mechanism . It certainly doesn’t seem to prosper too well outside a democracy . Funny that .

    [It] needs to be delivered to the hearts and minds of it’s victims , ie us , as a benign yet beneficial thing marketed as a means of great prosperity for all , so don’t you all look that gift horse in the mouth now will ya ? The proponents of neoliberalism are like door to door salesmen ( Or women ) . They have a few seconds to spin a line to get you to buy a thing you were perfectly happy without , and blissfully ignorant of , until this guy has you pinned down on your own door step . Before long , you have the thing and he has your money !

    Of course the exact opposite is the reality as we’re finding out and I’m afraid , way too late in the game . Too little for the great many and ‘ OMG ! Looooove the Ferrari darling ‘ for the very , very few .

    Is that why the delivery mechanism chosen for us Kiwis was the Labour Party ? Our Unions never knew what hit them , our well meaning politicians were bumped off and us lambs were trucked off to the slaughter house .

    There’s this documentary called ‘ What the Bleep do we know ? ‘ In it , there was mention of some South American tribe described as watching the ocean behaving oddly one day and not knowing why . Out there , on the horizon and plain for all to see , so you would think , was a quite big Spanish fleet bobbing about causing a different kind of wave to fall along the beach . The reason for the Tribes People not seeing the Spanish fleet was , according to the documentary , because seeing such a large number of huge ships was so far from the comprehension of the Tribes People , the ships were invisible to them . ( Yeah right , I know . ) My point is , Neoliberalism is hiding in plain view . It’s so well camouflaged in truisms , legal logic , and abstract commonsense that it can remain , and do terrible damage right under our noses .

    Gosman . I’d really rather you leave Frank the fuck alone on that note . Frank’s trying to explain a camouflaged Thing and you are not . That might suggest that you are a confederate and I’d further suggest you look that concept the fuck … up !

    Pre Neoliberalism ; Lock my car ? What ? Why ? Lock my house ? Why ? What might happen ? The worst thing that happened to my family after leaving the house unlocked and going off to the movies back in the early ’60’s was that when we came home , there was a huge , white ferret curled up on the sofa . It was quite sober . Had stolen nothing , wasn’t on P so it didn’t try to rape my mum . It lifted it’s head up and to my utter amazement had pink eyes ! It was tame and made a great pet . It did disappear after it killed six of dads chickens though ?

    Post Neoliberalism ; Leave my house unlocked ! Are you mad ! I have my house triple alarmed and all my shit’s secretly marked . My insurance premiums are like another mortgage and I live in fear when I’m out the back thinning out my carrots . My neighbours steal my carrots anyway so I don’t know why I bother . I don’t lock my car anymore because it got ripped by gang bangers . The cops found some of it up a river bed . I never got an insurance pay out because it wasn’t stored in a bomb proof , quad alarmed , reinforced bunker .

    Here’s what Leonard H. Courtney said a couple of weeks ago .
    ” There is an imperialism that deserves all honor and respect — an imperialism of service in the discharge of great duties. But with too many it is the sense of domination and aggrandisement, the glorification of power. The price of peace is eternal vigilance. ”

    You guys , you guys are well onto it . I’m old now and near to death . I’m one beautiful woman and a bottle of wine away from my eternal something or others . But you , you have a ways to go . Don’t let the bastards grind you down .

  7. Countryboy says:

    Ok , ok . I’m on a roll of my own making . Jam filled , sugar coated .

    Dear old Leonard H. Courtney also said this ;

    ” Facts are facts, and although we may quote one to another with a chuckle the words of the Wise Statesman, “Lies — damned lies — and statistics,” still there are some easy figures the simplest must understand, and the astutest cannot wriggle out of. ”

    The neoliberal will decree that it will cost you , the lover of an evenings stroll $1.00 dollar ( + 10% default interest compounding ) per view of the moon to woo your maiden fair by . Or bloke . Hey , we live in enlightened times do we not ?

    The terminally neoliberally stupefied will say ; ” Awww fuck ! There goes a shag , I only got fifty cents ! Don’t look up Sharlieene ! You’ll put me in debt ! “

  8. Gudday Morgan,

    I don’t mean to be negative, but no. I think you’re confusing neo-liberalism for conservatism. This neo-liberal (left libertarian tribe) is tarred by the same brush as your erstwhile victims.

    When the hell did liberal become a dirty word?