Governments are stretching the traditional rule of law beyond breaking point, Louis Coutts says. The end result is not stronger justice, but a lesser society for all of us.
Blindsiding the Rule of Law
By Louis Coutts
As a lawyer, I have often been on the wrong side of public opinion. The difficulty arises out of my membership of the International Commission of Jurists, a Geneva-based body of lawyers dedicated to preserving the rule of law. I have been a member ever since I graduated many years ago.
You see, the rule of law is concerned with what we call “jurisprudence” as against the specific provisions of the law. Let me give you an example. There are five guys in prison in solitary confinement in this country, Australia. They have not been convicted of any offence and are in the most oppressive detention. The reason is that the laws of Queensland have declared the organizations of which they are a member, criminal organizations. For three or more members of such organizations to assemble, it is an offence with a mandatory prison sentence of at least six months.
One of the presumptions in a civilised rule of law society is that an accused person is presumed innocent until proved guilty and, if found guilty, only a judge can impose a penalty.
These people have not been brought to court and haven’t seen a judge but are locked up in solitary confinement. As the law stands, they have no redress. That is the state of the law in Queensland by which these guys have been detained. It is, as Inspector Clouseau would say “The leur”. So, once it is the law, we are stuck with it and these five guys are rightly imprisoned according to the law.
Should it be the law?
Jurisprudence asks the question “should it be the law?” Are there any constraints on our lawmakers to ensure that the law doesn’t get out of hand? Today, many people are unaware of the legal system of the Nazi regime80 years ago which in fact criminalised being a Jew. A properly constituted legal body passed the law and had the power to enforce it throughout Germany. After the war, German jurists, faced with the awful aftermath of these laws and their horrible consequences, started to ask the jurisprudential question: “Is there some governing legal concept that prevents a legislature in a civilised society from passing such barbaric laws”. They came up with the answer that there is something they called “natural law” and that natural law renders illegal that which otherwise would be legal if we just allowed the legislature a free hand.
These days, we don’t talk about natural law but rather we talk about the “rule of law”. The five guys imprisoned in Queensland might be the most terrible representations of humanity and because of that, there is a tendency in society to forgive the lawmakers for subjecting them to draconian treatment. “It’s OK to deal with crooks like that; they get what they deserve!”
That was the story about David Hicks, who was locked up in solitary confinement in Guantanamo Bay for five years without charge. “He was a crook, he was a terrorist”. So we can throw the laws away and just lock these guys up. It turned out that there was no evidence that Hicks had committed a crime. He was denied the right to habeas corpus which is a protection to individuals who have been locked up and not charged. According to traditional English law, people in such circumstances have the right to apply to the court and insist upon being charged or released from custody. Our own government acquiesced in this jurisprudential travesty in the case of Hicks.
This is where I often find myself on the wrong side of public opinion. I took the view in the Hicks case that before you lock him up and throw away the key (which is what the Bush administration did) he is entitled to a presumption of innocence until proved guilty by a properly constituted court of law after being professionally represented. This is how the rule of law operates. More fundamentally, he should have the right to insist upon being charged.
Some people object that this is pandering to the crooks. “They don’t believe in the rule of law and so why should we give them access to our system of justice”. The answer lies in the fact that we are – or at least should be – a civilised society and that, once we resort to the legal short cuts of our enemies, we lose that precious characteristic and are more easily identified with those who persistently abuse the rule of law.
It is so easy today to identify crooks such as terrorists or members of bikie gangs, throw the rule book out the window and lock them up. After all, we are told that they are gangsters and terrorists.
Not all ‘accused’ are guilty
Dr Muhamed Haneef was locked up incommunicado in a Brisbane jail for weeks. He was not charged and there was no crime to which he could plead his innocence and he did not have the right to habeas corpus (a remedy available to Englishmen since the 16th century). It turned out that he was totally innocent of any criminal activity.
Less than 20 years ago, a person who attempted to illegally enter Australia would be charged with an offence and have the opportunity to defend the charge in a court of Law. These days, our law is that people who do not have a valid visa can be locked up indefinitely without ever seeing the inside of a court. Australian citizens have been subject to awful and prolonged detention as a result of this law.
So, five blokes walking down the street to buy an ice cream can be locked up in solitary confinement with an hour exercise in 24 hours because they are alleged to be members of organizations that are criminalised in Queensland. Jurisprudence asks the question “is this right?” The question is more compelling in that Australia is signatory to an international protocol called the international protocol for the protection of civil and political rights (ICCPR). One provision of this protocol is that prisoners who have been charged but not convicted have the presumption of innocence and, therefore, their detention prior to trial should not be as oppressive as a person who has been convicted. There is not another person in a Queensland prison who is subject to more obnoxious conditions than these guys who are presumably awaiting trial.
And this is not the first time such insults have occurred. In a recent trial of terrorists in Victoria, the accused were subject to such horrific confinement while awaiting trial that counsel could not adequately obtain their instructions. After more than 12 months, two of these people were acquitted by a Jury.
What is overlooked in this simplified approach to rough justice is what we lawyers call “precedent”. Once you make an exception to the rule of law, there is the real risk that more exceptions will flow and the floodgates open. I can seriously say that we are not far from that situation now in Australia.
The real concern that should keep us, citizens of a civilised and free society, awake at night is the question, “where does it stop?” “At what point in time are the insults to the rule of law so awful that we finally say enough is enough?”
Sadly, precedent is not a favourable indicator for the survival of the rule of law.
The Queensland legislation (and I am told it is now being considered for introduction in Victoria) is a simple derivative of the jurisprudence of Stalin and Hitler. If it is so easy to criminalise a bikie gang and lock up members who assemble, the principle becomes enshrined in law: the legislature can simply name an organization either in substitution of a bikie gang or additional to it and bingo; don’t get caught down the street with your mates!
I can think of substitute words for bikie gangs such as Catholics, Indians, members of the Labor party, members of trade unions, Jews, or, to use the catch all phrase of communist Russian in the 1930s, “enemies of the state”.
People will respond by saying that such an extrapolation of the bikie case is laughable. The lawyer, committed to the rule of law, says that what we have already done is laughable…if it was not so serious.
– Louis A Coutts, a member of CLA, is a Melbourne lawyer
I am not a legal person so I can’t effectively comment from a legal perspective. However, I have come to the sad conclusion that, for the most part, there really is no justice in the law anyway – not in the Courts and certainly not in the Tribunals – the Govt.’s answer to “cheap and expedient” justice for all. What a perfect example of the Govt. being seen to do “something” when really it is doing “nothing” other than creating a farce.
The Guardianship Tribunals nationally do not rely on rules of evidence so how can one expect justice if there is no burden of proof. My dear father, since passed, laughed when I said we lived in a democratic country – and he was right – we are a dictatorship in many ways. Coming from Europe, he lived under a Dictatorship so he knew the difference between the two.
The public service juggernaught is expert in manipulation and cover up and the laws or lack of laws in our judicial system fail to provide any real hope for fairness or justice. Whistle blowers have little or no protection, public servants abuse their power because they can, Magistrates take the soft option, High Court actions are only available to the privileged few with deep pockets and mates in high places. Those principled enough to seek justice do so at the risk of become bankrupted and emotionally destroyed. Democratic and human rights are what we have to fight for rather than a perceived entitlement.
The Ethics Commission has some ethical questions to ask of its own personnel and the police force has enough rotten apples. Australia is not going down the drain – it is already there.
This is a crucial article about the general debunking of “The Rule of Law”. In a so-called democracy, justice and the media constitute opposition forces against the drifting off of our concept of democracy; but these days the media are in the hands of multinational corporations, therefore self-interest limited to a happy few and the manipulation of the masses for the same goal. As for the judicial, it is more or less in the same hands, with different rules for different people or entities, demonstrating in this manner ‘the rule of law’ and ‘habeas corpus’ are no longer fundamentals in ‘the due process of law’ in our democracies. The sad thing about it is that is not specific to Australia but it is now a global decadent, unethical process and that’s why it is a real worry. It also gives an accurate and comprehensive image of our societies in the 21st century because it hits at the essence of the concept of democracy. In fact, we have to become aware that we no longer live in democracies but in more or less soft forms of dictatorships. Consequently, people should be more exposed to articles of this caliber in order to understand why everything that was considered important in our democracies before is going down the drain.
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