Editorial: Kahuis have right to hold their tongues

It is no wonder the death of the Kahui twins ignited such national anger. It was appalling enough that two tiny premature babies, kept alive by the round-the-clock care of doctors and nurses in Middlemore's neonatal intensive care ward, were dead of massive brain injury just three weeks later.

Appalling also that those in a position to shed light on how they suffered their fatal injuries could, for so long, refuse to talk to the police. Even now, a fortnight after the deaths, members of the extended family are maintaining their silence.

But the Kahui family have a legal right to hold their tongues. No matter how unfair it seems, under the Bill of Rights they do not have to tell the police what they know and they do not have to speak if what they say is likely to incriminate them.

The law is there to ensure that the state and the police cannot arbitrarily cross-examine citizens, and it remains a fundamental right regardless of how heated society becomes or how self-evident it seems that people should be forced to comply.

While it is clear that someone with access to the Kahui twins has broken one of our most fundamental taboos - the killing of defenceless children - society, in its turn, cannot rip up essential laws simply because it is expedient in the light of an especially horrifying crime. That way opens the door to arbitrary arrest and the legal harassment of people on all sorts of spurious grounds.

While society rates nobody lower than a child killer or a child abuser - even in the warped hierarchies of prison those who hurt children are the bottom of the pile - it still extends fundamental rights to the lowest of the low. But if we were to deny those fundamental rights out of abhorrence for those who abuse or kill children, we get into impossible difficulties knowing where to reinstate them: for rapists? Muggers? Double parkers? Shoplifters?

At times like this it may be hard to swallow, but it should be self-evident that fundamental rights ought not to exist alongside exceptions. This is the worry in New Zealand where the Serious Fraud Office operates under legislation which overrides a suspect's right to silence. Last year its director David Bradshaw argued that because the SFO does not abuse its privilege, it should be extended to police and other agencies. In other words, trust us, we're a good agency.

But the truth is we trust them only because we make them play by the rules. It is the same lesson handed down by the US Supreme Court to President George W. Bush this week over the trial of terrorist suspects. Bush claimed unilateral authority as commander in chief to determine how suspected terrorists were tried. The court ruled, on the contrary, that he must apply the normal processes of law. It was a victory, said a military lawyer for one of the suspects, for applying the hard logic of law over the rush to expediency and anger.

In the Kahui case, it is the police who must now apply the hard logic of law to find a killer. Although the right to silence does hamper them, it does not make their job impossible. It is a compliment to our police that the existence of this right has not prevented them from establishing a good record in solving major crimes.

For their part, the family should remember that, if they decide to speak they will need to do so with care.

In the court of public opinion, at least, their silence speaks for itself.