Mostly the law gets done to people — by politicians, judges, lawyers and police. Is there room for citizens?
Citizens can take the law into their hands in three main ways (aside from vigilantism and shooting intruders, which are outside the law). They can be part of a movement or a party. They can be part of a pressure group. They can get angry and protest.
Citizens do have elections, referendums and polls and can “talk back” through radio and blogs. Perceived public outrage at crime has driven Simon Power to drive through a raft of lock-em-up bills to enhance citizens’ “safety”. His latest, now being fronted by Judith Collins as the “implementation” minister (Power denies suggestions that he disapproves), is the “three strikes” bill.
But elections, polls, blogs and the like are blunt instruments and the law stays in the hands of the politicians, judges, lawyers and police. Hence the resort to protest vehicles like the United States Tea Party which has hobbled attempts to fix that country’s sick “health” system.
The non-party Tea Party is now split between those who want to keep out regular politicians — and even irregular ones like Sarah Palin — and those who want to convert the Republican party to their brand of populist conservatism.
In the hands of a Winston Peters the Tea Party might evolve into a significant third force in regular politics. Some hope Palin, a jumble of folksy prejudices, can do that. But third forces in two-party first-past-the-post systems seldom get far. They usually at most frighten or excite regular politicians into action.
Some countries have tried to involve citizens in lawmaking through citizens assemblies or juries which chew over big issues. But these involve only a tiny few, not the many. And ultimately any resultant law change is done by “representatives”, selected for us by parties.
Some countries also let citizens decide issues through binding referendums citizens themselves can initiate. These are blunt instruments, too, as California, now broke, has found.
In the end laws get changed because politicians in parties change them (judges have a hand, too, at times). The best citizens can expect is that politicians respond.
Hence Power’s interest in what he calls the legal system, which he thinks is too much the legal priesthood’s preserve.
Citizens can directly influence the administration of the law only by becoming part of that priesthood themselves. Some are dragooned on to a jury where judges and lawyers belittle them by deciding what evidence they can hear and what of the evidence they do hear they are allowed to take seriously.
That legal system is not for ordinary folk.
Power, a lawyer by training but with a leavening of academic politics, has set out to make some changes. (Though not for the belittled juries.)
He has pushed victims’ rights on to courts’ agendas, marginalised when criminal law muscled into tort law, and procedural changes to the way sexual violence cases are treated in court. The aim is better justice — or just some justice. The law and justice do not always coincide.
He is also pushing a speeding up of the system. Some lawyers disapprove.
He set out these sad statistics in a speech on Thursday: a district court trial takes an average of a year, up 10 per cent on five years ago; a high court jury trial takes an average of 17 months, up 36 per cent on five years ago.
That suggests the old adage of “justice delayed is justice denied” has been institutionalised. How are witnesses to carry round accurate detailed memories for an average of 17 months? Power gave part of the answer: the delays, he said, have “contributed to an increase in the number of stays of prosecution, from six in 1999-200 to 19 in 2007-08”.
One improvement he has made has been to cut down deposition hearings, which used to amount to almost to a pre-trial trial. (The change has caused a temporary traffic jam as cases have come faster to actual trial). He has brought in a bill to substitute video-links for personal appearances by “participants” in criminal proceedings. He intends a bill this year to “streamline court processes”.
This is all aimed at efficiency but political studies alumnus Power is basing it on more than just warming Bill English’s cockles. He wants a power shift.
“Institutions often evolve through precedence, repeated practices that can provide continuity and predictability for those who use the system,” he said. And that “can lead our institutions to lose sight of their primary role”.
Enter the citizen, championed by Power. The justice system is not for the convenience of lawyers and judges, he said on Thursday, but “about the interaction between the citizenry and the state”. “That requires reform to be driven from the outside” — that is, by the citizenry, not the priesthood.
A politician is still doing the driving. But the invitation has been extended. Citizens might want to offer him help — and then inspect a few other systems run by the inmates.