Shooting the messenger; or, Speaking out on crime and punishment

By Ken Russell in Articles

A Connections article, reprinted from the Bulletin for 26th July, 2009

It is one of the oldest dictums of warfare, attributed to Sophocles, that "no one loves the messenger who brings bad news." Despite this, it was integral to the code of honour by which combatant forces communicated, that the messenger was not to blame for the message he carried, and was entitled to safe passage. However ferocious the hostilities, and however deeply felt the animosities between the warring parties, honour was honour, and to shoot the messenger because you did not like the message was a dishonourable thing to do.

Many variations of the same dictum have emerged since, but they all amount to an equally ancient device, argumentum ad hominem - literally "argument against the man" - employed by those whose argument is thin. It is to respond to an argument by attacking or appealing to a characteristic of the person rather than by addressing the substance of his argument. The task of proving or disproving an opponent's argument is thereby deflected, "on to the man." We've all tried it, with greater or lesser success - much lesser in the case of those occasional domestics!

And that is exactly the tactic employed against Chief Justice Sian Elias this last week when, greatly daring, she broke with the convention of strict judicial silence/neutrality on things "political" and spoke from her heart and her experience on a raft of sensitive issues confronting her profession on a daily basis - issues relating to the crime rate, punishment, imprisonment, rehabilitation. As it happened, and no surprise at all, none of her observations were perceived to be complimentary to the current tough punitive policies filling our prisons to bursting point..

Enraged, Minister of Justice Simon Power, who surely knew very well the Chief Justice spoke only the truth, the whole truth, and nothing but the truth about the seriously flawed policies of successive governments, his own included, took the ad hominum escape route. It's for the parliament to make the law, he blustered, it's for the judiciary to interpret it; I'm the Minister, she's the Chief Justice; she should do her job, I'll do mine - or words to that effect. And others climbed in behind him, notably his allies in Act, and predictably, the Sensible Sentencing Trust adding a demand for Dame Sian's immediate resignation.

Despite the prediction of several commentators that the outspoken Justice has this time crossed a bridge too far and will be gone by Christmas, there is behind the dust storm a huge community of opinion that Dame Sian having bravely spoken the truth any responsible government should heed, will stand her ground.

So what has been said that has caused such outrage in the corridors of power? Well, no more than what an endless succession of well informed researchers and reformers have been saying for decades . . . .

-- that successive governments under public pressure have shied away from expert advice advocating rehabilitation programmes and increased community sentences, to the more punitive prison-based regime demanded by public opinion

-- despite this the crime rate has blown out, and as a logical consequence the prison population has increased dramatically.
(New Zealand has more people in prison per head of population than any comparable western country except the United States, and Judge Elias estimates that under current policy and law will blow out by 35% in the next eight years)

-- past good attempts to reform the system have been prejudiced by headline-grabbing media intent on personalising and politicising justice issues, and fueling the public appetite for tougher sentences. Judicial policy should be above these pressures, and not subject to them.

-- the current fashion for making the victim the centre of attention in court cases is damaging the right to a fair trial, and even worse, is harming victims emotionally.

(Most outrageous of all to Mr Power and his colleagues, but never more than a whimsical idea in the speech by the Chief Justice, was the notion of an amnesty for selected prisoners, in religious terms a 'jubilee', if not as an act of mercy, then as a preferable alternative to building further zillion dollar prisons.)

The Minister of Justice has been preparing for his present office for the nine years of the Labour Government. He is highly rated for his grasp of the issues relating to his most sensitive portfolio. He has a very good idea of what is working, and what is not, in justice and corrections. All the more reason why he should step back from the vapour of indignation with which he now chooses to enshroud himself, and face the force of the challenge mounted against his failing policies. In this case the Chief Justice is both the message and messenger. He may shoot the messenger, figuratively speaking, but the integrity of the message is unassailable and must not for much longer be ignored.

Dame Sian Elias is no left-wing hand-wringer. Her proposals are not radical, or even new.. She has been a lawyer for 40 years. She's the country's first female QC. She's spent 10 years as Chief Judge and enjoys the confidence of her peers. She's eminently well read, and hugely experienced. It is hard to imagine anyone more qualified to tell us what's wrong with the justice system and why it is failing so badly. So let the law-makers abandon their refuge behind the niceties of outworn conventions and recognise the truth of an issue that vexes us all. There is more at stake than hurt feelings or offended protocols.

Ken Russell