The writer is in New Zealand.
I HAVE recently been interviewed on a US radio channel jointly with Billy Te Kahika Jnr and Vinny Eastwood. I realised I had been remiss. I had not publicly discussed their case, whose outcome will materially affect our future rights and treatment under the law. I want to rectify that now.
Mr Te Kahika, a pastor and former serving soldier and policeman, and Mr Eastwood, a social commentator and radio personality, have been given jail sentences of four months and three months respectively for participating in a peaceful non-violent protest against lockdowns. Their case comes up for appeal against sentencing today. They have both been subject to persistent unfavourable comment in the mainstream media, impugning their character and intentions.
It is very hard not to think that they may have both been sentenced to make an example of them and send a message to the whole nation. If this is the case, it will be the hallmark of a repressive regime.
The wheels of justice turn slowly for a reason: enabling the judicial system to place offences in the context of subsequent events. It has been two years since the alleged offence. Since then it has become known that lockdowns damaged our economy and disadvantaged the education of youth. They signalled the beginning of an era of high youth-crime rates, too high in fact for the police and courts to contain or mitigate.
It is also apparent that lockdowns and other pandemic policies ultimately proved ineffective at reducing the level of casualties and deaths. For example this article discusses that both Sweden, which didn’t lock down, and Israel, which did, had similar long-term health outcomes.
In their appeal, Mr Te Kahika and Mr Eastwood note that no one else has been jailed for offences of this type in New Zealand. In contrast to their treatment, a great many people arrested in protests during the pandemic have been released without charge, conviction or punishment.
There are very important points of law at stake here. The law is supposed to be fair. Laws should be applied equally, without prejudice or inequality. In the English legal system, from which our laws are derived, the role of the judiciary was considered to include the defence of fairness. In the early 1970s I heard Lord Justice Denning, Master of the Rolls, enunciate this concept at Birkbeck College in London. His words made a great impression on me. He said the judicial system ‘should uphold what right-thinking men know to be fair between man and man, and in these days between man and the state’.
He emphasised the need for the courts to think rightly and fairly in passing judgment. He thought the judiciary should play a role in curbing any excesses of the state. He recognised that a government, even though it is democratically elected at some point in time, must not lose sight of the rights of its individual members. If it does, it is right and proper for the courts to issue judgments reflecting a fair application of universal principles of justice.
In New Zealand we have a principle of the supremacy of Parliament to make laws, but we also have a Bill of Rights. Provisions 13 to 18 of the Bill of Rights grant freedom of thought, conscience and religion. They also grant freedom of expression, peaceful assembly, association, and movement. Provision 6 states: ‘Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.’
In the affairs of state it is the role of leaders to balance the social interest and the individual interest. Democracy is supposed to offer an opportunity for all to contribute and participate. It is not and never has been understood as a system of repressive control.
In retrospect, the measures taken during the pandemic including lockdowns may have been well-intentioned, but their net outcomes were extremely unbalanced – a fact which was admitted by Jacinda Ardern, the Prime Minister at the time, who spoke of the intention to create a two-tier society. It is even more clear now that this was a mistake, it was divisive, ultimately ineffective, and damaging. From this point of view with the wisdom of hindsight, Mr Eastwood and Mr Te Kahika can be legitimately understood to be justly seeking to protect the integrity of our nation rather than undermining it. They sought to support our democratic society.
Last week we witnessed with horror the murder of individuals and the shooting of policemen in central Auckland. https://www.nzherald.co.nz/nz/auckland-shooting-critically-injured-policeman-a-beloved-father-of-two-and-distinguished-sporstman/BCEK7AWGARAFLFYL5A2CTQCTZM/ We now know that the perpetrator was under home detention for violent offences committed against his extended family. During this detention he was also allowed the freedom to attend work. Contrast this with the sentences for Mr Eastwood and Mr Te Kahika for minor actions which did not involve any violence.
We also heard that our Justice Minister Kiri Allan had been arrested for drink-driving and failing to follow the instructions of a police officer after an accident. https://www.independent.co.uk/news/world/australasia/kiri-allan-resign-drunk-driving-chirs-hipkins-b2380741.html This causes us to recognise that the elected government can be fallible and it is the role of the courts to inject balance into the public debate.
I sincerely hope that today’s hearing of appeal finds in favour of the applicants. I believe justice served in this case could be a turning point in our nation and a way of healing the divisions which have grown up during the turbulent and uncertain years of the pandemic. I believe that an appropriate decision by the court could go some way towards restoring the effect of the provisions of our Bill of Rights, which were bypassed to a considerable, and I believe unreasonable, extent during the pandemic.
It is unfortunate with an election on the way that none of our currently elected political parties has talked about the need to entrench the Bill of Rights as a constitutional principle. Doing so would ensure balance between the rights of the individual and the power of the state. It would protect the people from ill-considered overreach by the government.
I am asking for you to voice your support for Mr Eastwood and Mr Te Kahika. It is surprising how little the media has published the concerns we raise here, rather choosing to denigrate the defendants, despite the fact that the judgments in this case affect everyone’s rights for the future. They are both family men of hitherto good behaviour who would suffer greatly if jailed. The emotional and material cost of their defence has been substantial. In particular, Mr Te Kahika has personally spent $97,000 on legal costs so far (an amount beyond his modest means) and needs more financial support to continue his defence and pay outstanding bills. I believe that support for the defendants is in everyone’s interest. You can view a documentary about their arrest here and sign a petition here.
Update: Judgement was reserved in both appeals.
