Rather than ring out the old year and ring in the new year with the usual inane rubbish about new beginnings and fresh starts, annual lists, countdowns etc., how about we use the occasion for a reality check, in this case a reality check on the state of the NZ judiciary using one very important case.

On October 15, 2007 a number of individuals were arrested on a variety of charges, including planning terrorist attacks. Others were arrested later, and collectively they have come to be known as the Urewera 18. On May 30, 2011, three and half years after they were arrested, the majority of these defendants will finally go to trial (three defendants will be tried separately).  Not only is the delay largely a result of the Police and Crown trying to introduce new charges after the fact and argue for the admissibility of evidence obtained under the Terrorism Suppression Act that was ultimately not invoked against the accused. Now, in a decision which has had its reasoning suppressed by the court, the Urewera 15 have been ordered to have a trial by judge. You read correctly: not only have they been denied  the right to a prompt trial but are now denied a jury of their peers. To that can be added holding the trial in Auckland when most of the defendants live elsewhere and their purported crimes were committed outside of Auckland.

Between the delays, venue and judge-only trial, the Crown and judiciary is engaging in a blood-letting exercise designed to drain the defendants materially and emotionally long before they enter the courtroom on May 30. Arguing under section 12 that the case is too complex, with too many defendants, with too many side-issues and matters of procedure to be considered adequately by a panel of laymen and women is an insult to the NZ public as well as a thinly veiled attempt at juridically saving face in a case that was over-ambitious, politically-motivated and legally flawed from inception.

This is further evidence of the ingrained authoritarianism and lack of accountability rampant in the judicial system. Judges act as if they are above the laws they are supposed to uphold. The Crown vindictively prosecutes cases without regard to their merits or costs because political interests are at play (remember that the NZ wikileaks cables show NZ government officials telling the US embassy in Wellington that theZaoui case was not winnable–then saw the Crown go ahead for another two years arguing for Zaoui’s incarceration or expulsion until the SIS finally dropped the pretext that he was a threat to national security). Elites are given name suppression for the flimsiest of reasons and judges protect their own when these transgress. This is exactly the sort of judicial attitude in dictatorships.

And yet, it is the attitude in NZ as well. Meanwhile, not a single mainstream media outlet has raised the subject of the long delayed and now jury-denied Urewera trial since the decision on the latter was announced in early December. Not a single right-wing blog has raised the obvious civil liberties and rule of law implications of the case. The Left commentariat has been largely silent as well, with the notable exceptions of Idiot Savant and Russell Brown.

Why is this? Is this silence a result of the fact that the accused are an ideological minority that are easy to scapegoat and persecute? If so, that is exactly the reason why the full spectrum of democratic commentators should be protesting the case: in a democracy it is not mainstream, “normal,” “nice guys” who deserve the most legal protection and rights of redress. It is the ideologically suspect, reprehensible, marginalised, ostracized or otherwise outcast who deserve the full protections of law precisely because they are at the mercy of the majority–a majority that is often ill-informed or manipulated by authorities when it comes to evaluating the merits of any given case against anti-status quo political activists. The majority may rule, but free, fair and impartial trials are the minority’s best bulwark against its tyranny.

That is another reason why a jury trial is deserved by the Urewera 15. A  jury, selected from the public mainstream, can listen to and observe the prosecution evidence and the defense against it in detail, first hand, then deliberate on the merits of each. That ensures that no judicial bias or hidden quid pro quos enter into the process. As things stand, the judge who hears the trial is vulnerable to such accusations, which is more the reason to bring an impartial jury into the process.

I am not entirely sympathetic to the causes being espoused by the Urewera 18. I do believe in their right to act militantly in defense of them subject to the penalties of  law should they act in ways that contravene criminal standards (as hard as it is to say, I extend this belief in the right to militant activism to neo-Nazis and skinheads as well so long as no harm to others results from it). Here I disagree with some distinguished Left commentators, who have seen something sinister in their activities and who believe that the political motivations of the defendants makes the case “special.”

I have already written at length on why politically-motivated crimes should not be treated as a special category so will not belabour it here. But I am sure that those who see sinister intent in the Urewera 18  will agree that the way this prosecution has gone is wrong on several levels. Even if the Urewera defendants are in fact complicit in something more than activist fantasy-ism and role-play, they deserve to be treated fairly according to the rule of law consistent with the foundational principles of a free society. Yet they have not, and nary a peep has been heard about that from those who should know better and who ostensibly are champions of the democratic ethos.

This attitude is shameful and should be repudiated by all fair minded people regardless of ideological persuasion.  The trial-by-judge decision must be appealed as a denial of due process and publicly repudiated by those who believe in the democratic ideal.

How’s that for some New Year’s resolutions?