Tuesday, 7 May 2013

Draconian measures not the way to go

There is no question that the seemingly out of control lawlessness in the country, particularly the rise in incidence of violent crime against women and children is cause for concern for all.  
However the call for, and moves to see the implementation of draconian measures, including that of the imposition of capital punishment and the reintroduction of the Vagrancy Act must be viewed with scepticism.
The imposition of any draconian law will no doubt result in the impingement of certain individual and collective rights guaranteed under the Constitution and will open the door for opportunities for further abuse. It also gives the impression to the general public that our political leaders have exhausted every possible avenue, and have tried all conceivable means to arrest this slide in lawlessness across the country without success.
The imposition of draconian measures, including state sanctioned violence through the implementation of capital punishment is a capitulation. An admission of defeat, and of the fact that our political leaders have ‘run out of ideas’ to correct this unacceptable situation in which we find ourselves.
Accepted, measures such as a nationwide State of Emergency, or one that is imposed in known crime ‘hotspots’ will provide temporary relief, however the intention of Government should be on devising stronger and more permanent measures aimed at giving greater protection to our people, particularly our women and children.
This exercise has to be focussed on countering the root causes of the seemingly national sense of discontentment that has manifested itself in various forms, including through an obvious decline in moral standards, and the increase in incidence of opportunistic and violent crimes.
However, empirical evidence from studies in countries which have implemented, or continue to implement capital punishment in its various forms suggests that this form of state sanctioned vengeance is not an adequate deterrent to crime.
A major death penalty study carried out in the United States in 1997 found that there was no evidence that the death penalty had any significant effect on crime rates, from minor offences to major crimes such as “murder, the personal crimes of negligent manslaughter, rape, assault and robbery, as well as the property crimes of burglary, grand larceny, and vehicle theft. In other words, there is no evidence ... that residents of death penalty jurisdictions (US States that implemented the death penalty) are afforded an added measure of protection against serious crimes by executions.” Also, the finality and irreversibility of capital punishment does not support rehabilitative approaches.
Papua New Guinea’s peculiarities aside, state sanctioned murder is not the answer. Neither is the possible imposition of legislation such as the Vagrancy Act since any such legislative enactment which seeks to restrict the free movement of people will be deemed to be against the Section 52 (Right to Freedom of Movement) of the Constitution, and as such, an unconstitutional law.
The PNG Supreme Court in fact ruled that provisions of the previous version of the Vagrancy Act enacted in 1986 were a breach of several such freedoms, including the right to free movement, as guaranteed by the Constitution.
Nonetheless, concerns on restricting the movement of people across provincial borders, as well as that of curbing the increase in rural-urban migration and its related problem of increased urban settlements can be implemented through an existing legal mechanism. This is found in Section 205B (Restriction of Movement) of the District Courts Act 1963 which states in Subsection (1) that “notwithstanding that restriction of movement is not specified as a punishment for an offence, a District Court may, in addition to any other punishment or punishments imposed, also impose restriction of movement in accordance with this section.”
Subsection (3) of the Act specifies that “where a person is convicted of an offence, the District Court that convicts him may, in addition to or instead of any other punishment that may be imposed, order him to (a) not to come or be within such a part of the country as the District Court specifies, or (b) to be returned to his home, as specified by the District Court, during such period, not exceeding five years, as is specified by the Court.”
Subsequent subsections of the Act determine, amongst other things, what ‘home’ in relation to a person means.
Whereas the Vagrancy Act gave wide ranging arrest powers to Police, subjecting any member of the public to arbitrary arrest upon the basis of a hint of suspicion, Section 205B of the District Court Act allows the lawful and legitimate removal of persons from whichever community within which he or she has been convicted of a crime. This also ensures that members of a community who are otherwise gainfully engaged and not criminally inclined are not unnecessarily victimised as they could be under the Vagrancy Act.
The State does not need to impose ‘draconian’ measures which will further restrict the rights and freedoms of people who are already limited in their movement, etc., by the ever present threat of crime. It needs to revisit existing legislation and mechanisms and where found to be appropriate and lawful, apply. Where found to be weak and ambiguous, strengthen and made specific, and where found to be missing or ‘silent’, enact and enforce.  
Most importantly, community and national leaders must seek to address the root causes of problems that contribute to the increased marginalisation of people and the consequent national sense of discontentment simmering beneath.

Back to basics PNG

In light of the tragic events of recent past which have struck at the very core of our social and moral conscience, many people have called for radical changes to be effected to the way we dispense justice upon perpetrators of violent crime, as well as to the whole government system we have as a country, with some calling for us to adopt Communism, for example.
However, I believe that adopting a new system of government will not necessarily prove to be the answer.
Certain systems of government 'work' for different societies because of the inherent character and nature these societies possess. Communism and 'guided' democracy 'work' for China and Singapore respectively because of their peoples ability to subject themselves to the rule of law, in whatever form this takes, and to coexist in a relatively stable manner in communal societies. There is no universal application of systems of government to societies with distinct peculiarities. Three cases in point; Cuba, China and North Korea are all communists states, but the application of the communism doctrine varies in all three, hence the differing types of societies these countries have relative to each other. In Fiji, military dictatorship is being seen by some as working positively for them. Note though that they have two predominant cultures, we have 800.
The parliamentary democracy we have presents us with the best avenue through which we can attempt to correct the ills affecting our society. And we already have the guiding principles and documents to steer us through, our Constitution being the most significant. The National Goals and Directive Principles, as well as the Basic Rights and Basic Social Obligations provide the best prescriptions for us in all our endeavours. The fact that we have deviated from these prescriptions sees us faced with the predicaments of today.
We need to revisit these noble goals and redirect our path. At the basic level, we need to instil in our children the basic principles of common human decency. For example, our children need to go through programs such as the Scouts and Guides at the elementary and primary level, a (military or paramilitary) cadetship at the secondary level, and a national service scheme after tertiary levels. We need to have religious instruction classes brought back to schools (be gone with political correctness), for students to sing the national anthem at assemblies, to recite the national pledge, and to learn the basic principles contained in our Constitution.
Our state institutions need to be reminded that they are duty bound to give effect to all the National Goals and Directive Principles through the laws and policies they formulate (see s.25 of Constitution), in that whatever law or policy a government department or agency makes must reflect the intentions of the NGDPs at all possible opportunity. An example would be for government to ensure all policies have a 'family impact statement.' Failure to have one must result in such policies being rejected.
Solutions should be sought to address the root causes of problems such as rural-urban migration, poor housing in urban areas, lack of ready access to health and education in rural areas, and poor road and transport infrastructure, rather than being reactive to symptoms of such underlying problems that fester over time and manifest themselves through such violent crimes as we have been witnessing lately.
There is no guarantee that changing a system of government will result in change for society if there is no change in the kind of people who would most likely be at the head of whatever 'new' system we adopt. As in the case of George Orwells Animal Farm, we may witness pleasing changes in the initial stages, but these will prove to be superficial as the appetite for power is gradually whetted by unrestricted and authoritarian power.
As simplistic as they may seem to the 'sophisticated' minds of the 21st Century, our NGDPs nonetheless provide for us a basic framework through which we can work to make things 'right' again. We need to go back to doing things the way we used to before which ensured that life during the 'gut taim' was a lot better than it is today.