“I invoke my right ot free speech”

There has been much discussion in the last few days regarding Sheikh Taj el-Din Al Hilaly’s comments regarding the behaviour of young ladies and sexual assault. One of the more amusing responses was the title of this post. I think the person was confusing Australia with the US. People often invoke their right to free speech. The problem with that is two fold. We have no constitutional right to free speech and second – even in the US that right is limited.

However, there is freedom to express opinion in this society with a few limitations. As long as you do not slander or incite violence you are free to say what you like. In my opinion what the Sheikh was purported to say was absolutely and totally wrong. Rape is a heinous crime and the attire of the victim should not come into it. There – I have said my piece, and exercised my free speech.

One further thing – why are people at all surprised? I have heard interviews with Al Hilaly and what he was purported to have said was entirely consistent with his philosophy as I had interpreted it from seeing him being interviewed. Have the people who are expressing surprise now had their heads buried in the sand? No they not read the papers or watch current affairs programs? He restated what he truly believes – it may not be what we believe – in fact what the vast majority of us believe – but that is his position. Why are we shocked that this attitude exists? Rampant racism still exists – both inside and outside the migrant community – why be surprised. Is it right that these attitudes exist – of course not but they do.

Don’t act all concerned and surprised when the obvious happens – that people state their opinion.

The slow silent death of justice

A new survey has just been published regarding peoples opinions on the use of torture, with some interesting results. It seems that the world’s policemen are not averse to using torture on other people even though its own constitution prohibits its use. In fact the US justice system considers evidence obtained through the use of torture or even coercion as tainted to the extent that it is not to be used as evidence. However, the new legislation recently passed in the US covering “enemy combatants” allows the use of evidence obtained by coercion in their trials. Interesting stance for people who stand in judgment on other countries violation of human rights, to the extent that they have imposed sanctions on countries who have engaged in the very behaviour which they themselves have been shown to be guilty of.

“We need to use torture to prevent loss of innocent life”, I hear you say. Or “torture is justified when it comes to preventing terrorism or in defeating terrorism”. These are interesting arguments but I feel rather emotive and open to serious question.

One person’s terrorist is another person’s freedom fighter. There have been many acts by the current moral guardians of the world that fall squarely inside the definition of terrorist act, yet they themselves deny that they were terrorist acts. It seems that a terrorist act is one which I say is a terrorist act. So there is a great deal of doubt in my mind that there is a clearly defined definition of terrorism. Don’t get me wrong – I am not saying that the suicide bombers, or such like are not terrorists but we need to be extremely careful that we do not use such an ill defined and variably defined word to justify the indefensible.

Secondly it flies in the face of the principle of the presumption of innocence. By the use of torture we are presuming the person’s guilt before justice has taken its course. We are in fact dealing out punishment to the innocent. If, for instance, the question was wether that person could see a situation where it would be necessary to torture them then I suspect the result would be entirely different. It is fine to do it to some faceless theoretical terrorist but don’t ever do it to me.

Thirdly, it is like the proverbial fishing expedition, giving the state carte blanch to torture at their whim on the most feeble of evidence. In this country there has been the new legislation which gives the police the power to arrest without charge. Not only that, it is illegal in such cases to pass onto anybody information regarding that person’s arrest. They are without representation, without scrutiny, held incommunicado with no possibility of the application of natural justice. Habeas corpus is a nonsense. Now if you then couple this gross violation of human rights with torture it moves from the unjust to the heinous. People can be kept without charge, without recourse to the justice system and representation and able to be tortured, merely on a whim.

This scenario reminds me of a certain European country in the 1930s; that too was a democracy.

Send not to see for whom the bell tolls…

There seem to be to be three fundamental principles within the justice system that we have inherited from the UK that ensure fairness and protection for our citizens. These three principles have been established over many centuries and are present in the legal systems of the UK, the US and Australia, to name a few. They are enshrined within common law, statute law or various constitutions. These three principles are the presumption of innocence, habeas corpus, and protection against “double jeopardy”. As our systems of democracy have evolved so have our systems of justice such that we have a system of government together with system of justice that is unrivalled in its fair treatment of its citizens in all of recorded history.

The purpose of these principles is to protect the states citizens against abuse by the state.

In the judgment by the Chief Justice Gleeson & Justice Hayne, R v Carroll [2002] HCA 55 (5 December 2002) at [21]-[22] they state;

“A criminal trial is an accusatorial process in which the power of the State is deployed against an individual accused of crime. Many of the rules that have been developed for the conduct of criminal trials therefore reflect two obvious propositions: that the power and resources of the State as prosecutor are much greater than those of the individual accused and that the consequences of conviction are very serious. Blackstone’s precept “that it is better that ten guilty persons escape, than that one innocent suffer” may find its roots in these considerations.

Many aspects of the rules which are lumped together under the title “double jeopardy” find their origins not so much in the considerations we have just mentioned as in the recognition of two other no less obvious facts. Without safeguards, the power to prosecute could readily be used by the executive as an instrument of oppression. Further, finality is an important aspect of any system of justice.”

What they state regarding double jeopardy can easily be said of the presumption of innocence and habeas corpus.

The great tragedy is that in recent years there has been an erosion of these three pillars of justice for political expediency and popularist sentiment. In an interview recently on the legislation passed in the US parliament regarding the Guantanamo Bay detainees one of the interviewees said that the reason habeas corpus was enshrined in the constitution was that it would not be subject to the political whim of the government of the day and that this, with many of the other constitutional principles, was too important a right to be left to a popular government.

There has already been an instance in the UK where a man who was acquitted of murder was retried and found guilty, thus being subject to double jeopardy. In this country there are ongoing debates, mainly fuelled by popularist, emotive and ill-informed public debate on high profile cases where it appears that “criminals” have been acquitted on technicalities. What this ignores is that these cases often take months to hear and digest all of the evidence and that the people deciding on these cases have given much time and effort to weigh the evidence and come to a considered decision. To think that a few column inches in the local paper can provide anything than a cursory glance at any of these cases is a mistake. The other popular argument is that advances in science have made more evidence available. Well this does apply to old cases where that evidence is available but that does not apply to new cases. In any case there has always been the possibility of discovering new evidence by other means and availability of new evidence, by whatever means, has not been an argument before today so scientific advances does not substantially change the argument.

In previous entries I have spoken about habeas corpus and the presumption of innocence. I find the desire to reverse the many centuries of hard won liberties and protections against state abuse of power disturbing. People need to understand that these principles are there for their protection and by removing these protections they are seriously eroding the democratic principles that give us a free and open society. People who feel that an injustice has been done by the release of alleged offenders on “technicalities” are making a rod for their own back if they think that abolishing any of these principles will server their interests. In fact it is my opinion that the weakening of any of these, as has already happened in many places, will only serve to harm those who are seeking these changes.

I am reminded of the words of John Donne when I think of the calls for the abolition of theses protections, “Send not to see for whom the bell tolls, it tolls for thee.”