Editorial: Backdown on right to silence appropriate

Simon Power. Photo / Sarah Ivey

If Parliament wishes to tamper with such funda-mental principles, it must have the courage of its convictions. The Justice Minister's determination to usher the Criminal Procedure (Reform and Modernisation) Bill through Parliament this term prompted an extraordinary proposal. Simon Power wanted the decision on whether accused people should lose the right to remain silent and not have that held against them to be delegated to the Rules Committee, a panel of judges and legal experts. By taking the controversial issue out of Parliament's hands, he hoped to overcome the qualms of a number of MPs.

That did not happen, and, as negotiations continued, the bill's second reading slid down Parliament's Order Paper. Now, happily, if belatedly, Mr Power seems ready to back down.

The clauses championed by the minister would have required the defence to disclose to the prosecution before a trial all disputed aspects of a case. Failure to do so would have allowed a judge or jury to infer a greater likelihood of guilt. At present, a defendant can stay silent, leaving the case to the prosecution to prove beyond reasonable doubt.

The change proposed by Mr Power, in large part a response to the Kahui case, undoubtedly represented an erosion of the right to remain silent. As such, it would have affected a fundamental principle of the Bill of Rights Act, which is designed to ensure the police and the state cannot arbitrarily cross-examine citizens.

Given the constitutional significance of the right to silence, it is imperative that the country's elected representatives, the makers of its law, accept responsibility for any amendments. Leaving it to legal experts to rule if a disclosure regime should be enforced, and how, would in no way be an acceptable compromise.

Only matters of considerably lesser responsibility should be delegated in this manner. If Parliament wishes to tamper with such fundamental principles, it must have the courage of its convictions.

Mr Power's alternative path was an admission that he did not have sufficient support for this. Yet this would have had more than constitutional difficulties. Practical problems involving the Rules Committee, whose sole ambit is court procedural rules, also gave cause for considerable concern.

Chief Justice Sian Elias, on behalf of Supreme Court, Court of Appeal and High Court judges, had made clear her opposition to any change to the pre-trial disclosure regime. However, district court judges broadly approved such a regime.

This raised the possibility that the three-strong Rules Committee at that level, which comprises the Chief District Court judge and one other district court judge, would deliver rulings inimical to those overseeing the higher rungs of the judicial ladder.

This range of problems seems, quite rightly, to have finally spelled the end of Mr Power's compromise.

With Labour, the Maori Party and the Greens wanting the disclosure regime taken from the legislation, the minister needed to convince three Act MPs - Hilary Calvert, Heather Roy and Sir Roger Douglas - that they should support the amended bill. Their backing, however, would have contravened a resolution in support of freedom of speech and the right to silence passed by their party's board last weekend.

Even if Mr Power had been able to secure the support of the Act MPs, all of whom leave Parliament at the end of this term, this should not have been a cue to proceed.

Legislation as controversial as his proposal, and as fundamental to New Zealanders' rights, should not scrape through Parliament with the barest of majorities. In the circumstances, abandoning plans to abolish the right to silence and to involve the Rules Committee is the only right course.