Rousseau and the right to silence

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We are seeing a steady erosion of fundamental legal protections in New Zealand and a parallel increase in the powers of the police and other state agencies. In this post I’m going to focus on the right to silence: this is an essential form of personal protection when spoken to by the police, who can and will twist, use, and abuse anything you say. The police are experts at asking questions such as “When did you stop smacking your children?” and “When did you stop beating your wife?”: after all, they do have a vested interest in a conviction.

Current threats to the right to silence include:

  1. the Alcohol Reform Bill. Clause 408 inserts into the Local Government Act 2002 a new section 245A giving constables a power to require people believed to be breaching [an area liquor] ban to give their name and address, and the name and address and whereabouts of any other person connected in any way with the alleged offence. Even the Attorney General questions the justifiability of this (para. 15-18)
  2. the Search and Surveillance Bill. The Justice and Electoral Committee report on this says

Examination orders were one of the most contentious aspects of the bill. They are court orders allowing the police to require a person to answer questions where they have previously refused to do so. Concern was raised that this would remove an individual’s right to silence and the privilege against self-incrimination. It was also argued that people might resort to lying or provide information that was of little use.

We acknowledge these concerns, but we believe there are strong policy reasons for the examination order regime to remain in the bill [translation: the state's desires justify anything that achieves them. The end justifies the means]. An examination power is available to the Serious Fraud Office under its Act for the purposes of investigating serious financial crime. The rationale is that such power is necessary because of the complex transactions that may be involved in such offending. In our view, it would be anomalous if such a power were available to the Serious Fraud Office but not to the police in relation to such offending as money laundering and other forms of organised crime which are also likely to involve particularly complex transactions and arrangements [this is circular reasoning, i.e. "the government has given this power to one enforcement agency, therefore other government agencies should have it"].

We also believe that examination orders would assist in situations where a person was reluctant to assist police on the grounds of professional confidentiality. This might happen, for example, in an investigation of serious financial offending. A professional who might have evidential material useful in prosecuting the case might refuse to assist police for fear of breaching professional standards or regulations. In this case an examination order would allow the person to assist without any risk of doing so ["allow the person to assist" is Orwellian newspeak for "compel the person to assist the police". In removing professional confidentiality the government is saying "we want to be able to pry into private matters discussed between two individuals if this helps us achieve our goals". Again, the end justifies the means, in the eyes of the state].

Clause 132 of the bill would ensure that the privilege against self-incrimination under section 60 of the Evidence Act 2006 was preserved for a person subject to an examination order. We do not recommend removing this fundamental right. We note also that the proposed use of examination orders under the bill would be subject to more rigorous scrutiny than they would under the Serious Fraud Office Act 1990, as the bill would require prior judicial authorisation [how comforting it is when a state employee "protects" us from abuse by other state employees].

The state is ineffably arrogant and totalitarian when it says “You will answer the questions that we put to you or you will go to prison”. What is the belief system that leads to this attitude?

It all goes back to Rousseau’s Social Contract Theory. It should be noted that the name is a deception, for it is imposed upon you by the state while a contract is an agreement freely entered into by two or more parties. Rousseau says

If then we discard from the social compact what is not of its essence, we shall find that it reduces itself to the following terms:

Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole.

At once, in place of the individual personality of each contracting party, this act of association creates a moral and collective body, composed of as many members as the assembly contains votes, and receiving from this act its unity, its common identity, its life and its will. This public person, so formed by the union of all other persons formerly took the name of city,[4] and now takes that of Republic or body politic; it is called by its members State when passive. Sovereign when active, and Power when compared with others like itself. Those who are associated in it take collectively the name of people, and severally are called citizens, as sharing in the sovereign power, and subjects, as being under the laws of the State. But these terms are often confused and taken one for another: it is enough to know how to distinguish them when they are being used with precision (emphasis added).

Note the following:

  1. the “general will” is a fiction, and what happens in reality is that the will of the oligarchy triumphs. E.g., at least 83% of the NZ population wanted smacking to remain legal, but the oligarchy thought they knew better so it became illegal.
  2. Rousseau is advocating the extinguishment of individuality: he wants individuals to be subsumed into the state. Rousseau’s utopia dystopia is akin to an ant colony or a beehive. If you lived in it your personal preferences would be of no account.

Rousseau goes on to say that life is not a gift from our creator, but a gift from the state. This shows that social contract theory is utterly evil and totalitarian:

Furthermore, the citizen is no longer the judge of the dangers to which the law-desires him to expose himself; and when the prince says to him: “It is expedient for the State that you should die,” he ought to die, because it is only on that condition that he has been living in security up to the present, and because his life is no longer a mere bounty of nature, but a gift made conditionally by the State.

Can you see the parallel between the beliefs of the New Zealand government and Rousseau? Both expect us to give up our personal rights because that serves the best interests of the state. Personal rights are those that pertain to your body, e.g. the right to be free from assault and the right to keep your mouth closed. In removing the right to silence the state is saying that it wants to control your body. There are few violations more grievous than this.

Although they do not state it specifically, the individuals in government generally adhere to Rousseau’s principles, i.e. that you should surrender every right for the good of the state. They do so because pride lives in the heart of every man and pride loves power. These new bills give those individuals more powers and they delegate them to their servants the police, while history shows that governments and police forces will abuse every power that they have. Requiring someone to speak is the easy way of obtaining “evidence” and I have no doubt that the police and other state agencies will use it as a first resort.

Consider this: if the state can only “prove” guilt beyond reasonable doubt by compelling a person to talk how safe is a conviction arising from that compelled speech? When the state lacks circumstantial or other evidence and relies on compelled speech it has a very weak case.

A commonsense approach to this situation

I believe that the right to silence should be absolute, because I believe that every person has the right to absolute control of their body unless they have violated the personal or property rights of another person (not “are alleged to have violated the personal or property rights of another person”).

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One Response to “ Rousseau and the right to silence

  1. New law supposedly protects some and threatens the rest of us « Mandeno Musings Says:

    [...] a gradual process wherein the government is removing the protections that the law gives us, such as the partial removal of the right to silence and the incoming new requirement for defence lawyers to identify matters in dispute before a trial. [...]


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