So in what manner does Revolution impact on policing? This Post is an examination of the delicate complexities of the relationship between a revolutionary movement and the Police. It is an awkward situation really, a revolution is, axiomatically, as big a breach of the law as you can get. And yet a revolution cannot practically happen without the explicit or complicit consent of the people. A revolutionary movement is an expression of the public will. Theoretically, the Police serve the will of the people, and yet practically the police serve the letter of the Law. In a legalistic framework, the Law resolves as an expression of custom and usage, definitions and the intersection of society and government. Precedent defines definition, with the added complication that Parliament may add or amend legislation to reform definitions, intent and practise of the Law. Inherent in the nature of political and complex systems is the potential and inevitability for self interest and internal logic to form sectors that end up serving themselves rather than the original objectives. Therefore there exists a potential dichotomy between the Will of the People and the institutions of the Law. That being the case, do our statutes, institutions and practises of the Law actually form a mechanism of expression that is at odds with the will of the people? For that matter, what constitutes the will of the people? And what are the practical policing implications of all this?
Technically, publicly advocating the subverting of a law is a breach of the Law, and yet within certain contexts and parameters it is de’facto and de’jure considered legitimate. One of these contexts includes the democratic political process. For instance, it is legitimate to call for the repeal of a law, even occasionally to call for the disobedience to a law, as long as that happens within the context of the normal and established forms of the parliamentary process. During a political debate or confrontation, two or more competing factions may have diametrically opposed views on a matter of legislation and Law. There may be no clear community consensus on the subject either, and in this instance the Police may well not be relevant to the proceedings even when an opinion contrary to the Law of the land is expressed and advocated. Even when such contrary opinion is actually actioned, it may still not be subject to legal sanction or Police response. The NZ Anti-Apartheid movement in 1981 was involved in actions protesting the Springbok tour. Those actions may technically have constituted a breach of the law, however judgement calls were made at a number of levels within the policing and justice system that while sanctioning some behaviours, effectively condoned others. There are provisions within the law and precedents of custom and usage that allows for flexibility and enforcement discretion within certain social contexts. The Police need not enforce the letter of the Law to the full extent of the Law in every instance, similarly with the courts. So there exists a stepwise graduation of the practice of the Law between rigid enforcement, discretionary enforcement, and circumstances where it would be inappropriate to enforce the Law.
To draw another extreme example; the people who work in and administer the system of the Law, collectively constitute a significant body. Likewise, the number of people sanctioned by the Law also constitute large numbers. Judges, lawyers, police, prison officers, etc on one side and convicted offenders on the other side. Arguably these two groups have diametrically opposed interests and opinions of the Law and in one sense would serve to cancel each other out. They are still however distinct minorities of society, both as factions and as a combined interrelated complex, most people are neither officers or protagonists of the law. The vast majority of people have occupations and lives that have minimal contact with the law beyond infringement incidents (parking tickets etc) or compliance requirements (building permits etc). Yet in this instance, the bulk of the population hold an opinion substantially compliant with the Law, and the “Will of the People” may fairly be adjudged to be properly rendered by the instituted legal system. Our prisons hold those people who have offended against the prevailing social norms. The Police as a component of the legal system act in compliance with their oaths and responsibilities by apprehended offenders, processed them into the Justice system and thereby discharged their duty to the community. It is not always so straightforward, and there need to be systems in place for society to influence, amend, originate or repeal legislation and laws so that the will of the people is reflected in the laws of the land and in the policing of those laws.
For example: the Prostitution Law Reform Bill was the result of an interesting situation. The Law stated that certain activities surrounding the practice of prostitution were illegal. The Police investigated and brought cases against a number of people. Those cases proceeded by due process through the courts, but failed in the prosecution of the offences. The courts could not and would not convict. That being the case, the Police declined to bring any more such cases before the courts and recommended to government that the Law needed to be re-addressed in parliament. Substantially, the courts recognised there was insufficient public support for the Law as it stood and started a process that raised the question to a superior body for review and possible amendment. In this instance the superior body was parliament and subsequently the Law was rewritten, prostitution was legalised and the aggregate will of the people was adjudged to have been be recognised by the due process of the legal/political complex.
What our system of government and laws should be and should do, is always going to be a subject of debate and contention to some extent of course, but on a broad basis there should also be consensus. In one respect, it shouldn’t matter, the Law is the Law and the duty of the Police is to enforce the Law as it stands, deviations from the law should be policed as a matter of course and of policy. Should… isn’t that a wonderfully elusive concept though, particularly in a political context. The Police should recognise appropriate limits, and parliament should likewise, government bureaucracies should work in the interest of the public good and the public will, commerce and enterprise should work both within the spirit and letter of the law. Unfortunately those ideals are as often honoured in the breach, as the practise. There exist a multitude of opportunities and instances where the idealised social compact of ‘government of the people, by the people, for the people’, is subverted to the result that various social factions and interests are served to the detriment of the wider community. Too often that subversion of the system from within is either not recognised or not policed. The mechanisms for appropriate policing are either completely absent, insufficiently applied, or deliberately suborned. Now in any society and within any system there is inevitably instances of this. It isn’t necessarily systematic or pervasive and should be able to be dealt with on a piecemeal basis as it becomes apparent or exposed. And that does in fact happen on a continuing basis, deviations are recognised and dealt with, corrective measures are implemented, remediation and rehabilitation occur. The system would seem redeemable, minor adjustments and amendments, a process of gradual evolution serves to police the system while effecting the will of the people, maintaining and advancing the social compact.
Or then again maybe not: what if what should be happening per the will of the people, actually is not? To what extent are there forms, factors and interests in play that subtly (and unsubtly) work to create a dislocation between intent and result. Is the reality actually that the system is corrupted to an extent that it is beyond redemption? If the existing mechanisms for coordinating and correlating the Will of the People with the letter and form of the Law, systematically fail in that endeavour, then the Police working within that dynamic must similarly fail to best serve their community. Revolution then, becomes an act of Policing, remediation to excise corrupt practice, and to clear the way to establish innovative and progressive systems to both address the prior problems and to foreclose at inception any incentive and imperative to renewed corrupt practise. The core of the question is: can the existing political, legal and policing system address the issues facing society or are those problems inherent to the system? If they are inherent to the system, then to remove the problems requires removal of the system. The system is the problem. And here is the problem for the Police: policing functions under the old regime simply serves to perpetuate the mechanisms of corruption and failure, either because the Police are corrupt (thankfully not really any sort of problem in NZ) or because it becomes an act of misdirection. We rigorously apply the laws, but we just don’t have laws for the things that need them and the existing system of Law acts to shield, protect and promote the inappropriate behaviour.
This is where the intersect is between society, government, the Law and the Police. The threat is that such a big blowback is created by failures of the system that our whole society is at risk. That situation can only come about from a legislature that is irredeemably captured by sectorial interests, corrupt participants, and systems and processes that have catastrophic unintended consequences. In fact it is the unintended consequences that are by far the major issue. A political system that creates Tweedle-Dum and Tweedle-Dee options that are no real options at all, mass media that entertains not educates, education systems that are chasing the dollar and not enlightenment, Laws that create lawyers and billable hours but little else, commercial and corporate practices that reward psychotic behaviour… it just goes on and on and on. The tragedy is that all these institutions are staffed by generally honest and earnest people, who are completely constrained by the processes they work within and over which they have no control. By definition, an irredeemable system creates conflicts that policing can’t resolve, only revolution can.
So, if the Police are here to serve and protect, then they must decide whom that means to serve and protect. On the assumption that it means the people of our nation, are the people best represented by the old established institutions or by the new Revolutionary movement. Do the Police serve and protect the government and its institutions – of which they are one – or do they serve the people marching in the streets demanding change? If or when we get to a sufficient crisis that raises this question, then this will be the cause of considerable angst both collectively and individually for police. This is not a trivial dilemma for a sworn arm of the Law.