Politicians turn law into an ‘ass’

What type of society do we really live in? Lawyer Louis Coutts examines how the rule of law has been pretzeled to the detriment of justice by Australian governments.

Politicians turn law into an ‘ass’

By Louis A. Coutts*

Charles Dickens described the law as an “ass” and was equally uncomplimentary about lawyers. So far as the wider community is concerned, nothing much has changed since the days of Dickens. There is the cruel quotation: “Don’t tell my mother I am a lawyer, she thinks that I play the piano in a brothel.”

MalTurnbullMind you, Dickens lived in the days of the death penalty for minor offences together with flogging and deportation of criminals who became slaves 11,000 miles away in their new country. Thankfully things have improved dramatically since the days of Dickens (photo), but the negative perception in the community of the law and lawyers is still prevalent. A significant contribution to the improved human-ness of the law is due to the existence and work of an independent legal profession that so often has stood against tyranny.

The Australian, Malcolm Turnbull, became famous for standing up as a lawyer to the British Establishment. The Thatcher government wanted to prevent the publication of a book by a former MI5 agent that provided insights to the British spy service. Turnbull succeeded in persuading the courts here in Australia to permit its publication despite the objections of the British government.

So, yes, we are happy that things have improved and perhaps we can give some credit to courageous lawyers. But how far have we advanced towards making the law less of an “ass”? Let me paint a picture of a society that fails to have the protections that have been gained since the days of Dickens.

Let us assume that we live in a society which is insulated from the democratic process and the normal legal protections with which we are so familiar. In this society,:

  • people are subject to arbitrary arrest without being charged with an offence;
  • they can be incarcerated in solitary confinement, tortured and denied access to any traditional legal protections;
  • they can be detained indefinitely without any rights to demand a fair trial:
  • if and when they are charged, they are tried by a tribunal made of the military who are not lawyers;
  • evidence obtained under torture can be admitted by the tribunal hearing the case which is empowered to impose the death penalty;
  • bail is not available to them because they have not been charged with any offence;
  • there is no court to which they can apply for relief;
  • they can have a lawyer appointed by the government that has incarcerated them but that lawyer is constrained by the laws that have brought about the imprisonment of the client;
  • in any event, that lawyer is answerable to the government.

So the unfortunate person is indefinitely detained in awful circumstances without any rights to a trial or freedom and subject to torture and the most degrading treatment. It is what we call a rogue state where the law is an “ass”.  Thank God, it couldn’t happen to us!

Think again.

Two Australians were caught up in such a society and their internment was enthusiastically supported by the Australian government. In the end, neither of them were guilty of any crime. One was in fact tortured in an Egyptian gaol. The other was tortured in Guantanamo Bay.

One of the Australians was released after being tortured in an Egyptian prison and having spent three years in solitary confinement in Guantanamo Bay without charge. Another Australian, David Hicks, was detained in solitary confinement in Guantanamo Bay for five and half years and when offered release to a prison in Australia, pleaded guilty to a so-called crime which was subsequently declared invalid by American authorities. He has since been acquitted of the “crime” to which he pleaded guilty in order to get out of Guantanamo Bay. He is in fact innocent of any crime. Had it not been for the courageous work of an American Marine lawyer by the name of Dan Mori, Hicks would in all probability be rotting in Guantanamo Bay or dead as a result of suicide.

After his innocence was declared, the Australian politicians who applauded his apprehension, detention and treatment declared that he deserved what happened to him because he was up to nasty things in Afghanistan. According to the authorities, he was a terrible person and deserved everything he got.

So the law has got away with what happened to Hicks with the approval of our own government on the basis that he was a bad person despite the fact that he had not broken any law. What was I saying about things having improved since the days of Dickens?

If you visit social media, you will find the most venomous criticism of Hicks coupled with the opinion that he got everything he deserved.

We live under a legal system skewed by politicians

What all this means is that we live in a society where the government will approve the detention, torture, continued incarceration in solitary confinement coupled with the exposure to trial by a kangaroo court which has the power to impose the death penalty, just because someone “is a terrible person” and despite the fact that they have not broken any law. To a lawyer, that makes the law look an “ass”…and not because of lawyers but because of politicians.

When a lawyer is acting for a client accused of criminal conduct, the first question to be considered is whether the client has broken any law. It doesn’t matter whether the client is an awful person with a total absence of morality, if that person has not broken any law, he or she cannot be punished by the law.

Once we agree that a person can be locked up in solitary confinement and tortured without breaking any law, then the law is meaningless. Authorities can simply lock people up because they disagree with the authorities or for any whim that appeal to the authorities. That happens in rogue states and it is happening in Russia today if you are lucky. If you aren’t lucky, you get shot on the streets or poisoned.

To create a situation where a person can be locked up and punished without having broken any law is to create an arbitrary society where it is not safe to express an opinion or even walk down the street. The protection against such a society is an independent judiciary and legal system where lawyers have a right to erect obstacles against arbitrary government.

In this country in 2007 the Indian doctor, Mohamed Haneef, working on the Gold Coast was imprisoned in virtual solitary confinement without charge for two weeks and was totally and completely innocent of any crime. The justification was that he was a “terrorist”, an assumption that turned out to be completely groundless.

In Dr Mohamed Haneef’s case, Minister Kevin Andrews was found to have made a “jurisdictional error”. Here’s how John Ditchburn of Inkcinct Cartoons saw it.
In Dr Mohamed Haneef’s case, Minister Kevin Andrews was found to have made a “jurisdictional error”. Here’s how John Ditchburn of Inkcinct Cartoons saw it.

 We now have laws that enable what we call the executive branch of government rather than the judiciary to imprison people who have served the sentence imposed by the courts. If they have previously been convicted of a serious sex offence, the executive can keep them locked up without charging them and without the involvement of the courts. That is OK, according to the wider community; “they are sex offenders”.

So what if they have served their time as thieves or drug abusers or criminals who have caused unlawful damage to property? What is to stop the executive branch of government from deciding that they have to stay in prison even though they have done their time and haven’t committed any further crimes simply because they have trafficked drugs or stolen property?

The fact is that in the ordinary process of the law, the courts have punished them, they have done their time according to the sentence of the courts but then the executive branch of government steps in and keeps them locked up even though they have done their time.

I once acted for the Uruguayan community here in Australia who had a relative locked up in Uruguay who had served his time but was immediately re-arrested on his release and imprisoned without further charge. That was when the murderous junta ran Uruguay.

We can even invent laws such as a law that will send a journalist to prison for 10 years if he or she crosses an arbitrary line in reporting on terrorist issues. That law will shortly be on our statute books here in Australia, a so-called free society.

What about laws that deprive a person, charged with a terrorist offence, access to a lawyer of his or her choice? The person can only have a lawyer appointed by the government. What about a law that someone who, for political, ideological or religious reasons throws a tomato at the Prime Minister and injures him or her? The normal judicial process is suspended and the person is charged with a terrorist offence and subject to inordinately harsh penalties.

These, together with a host of other laws, are on our Australian statute books today but we are unaware of the seriousness of the situation. Today, it is OK if they are a terrorist or a sex offender or members of a bikie group. Perhaps tomorrow it might be that they are Catholics or Jews of members of the Greens party.

Lawyers look at the direction of our laws and complain to the authorities (which lawyers have done through many of their organisations, including the International Commission of jurists) that we are abandoning a free and civilised society. People are being exposed to prosecution of crimes and denied fundamental procedural protection because they fall into a category that is currently unpopular.  But our objections fall on deaf ears. “What, do want to protect terrorists, or sex offenders or bikies or drug addicts or larrikins who get into a fight?” Is the response which has some resonance within the community.

To the lawyer however, the response is:

No, we want to protect a free and civilised society. With the constant erosion of rights that were once part and parcel of our legal system, we are alarmed that we are going in the wrong direction. The greatest protection against any form of arbitrary behaviour is the Rule of Law and once we throw that out the window, we never know who might be tomorrows terrorists. In Russia the other day it was the leader of the opposition.

So, as I said, lawyers today look upon the law as an “ass” but lawyers are not responsible. Independent lawyers are perhaps the only weapon against the erosion of the Rule of law in our society.

Politicians are turning the law into an “ass”.

* Louis A Coutts is a Melbourne lawyer and author and a member of Civil Liberties Australia.

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