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Retrospective Guilt

Here are some pretty banal observations on the Hicks case that are probably best kept to myself, but I’ll inflict them upon you anyway.

Miranda Devine (yes, sorry) reckons that Hicks supporters thought he was innocent. Maybe some of them did. But the rest of us were just interested in the process of a fair trial. You know, justice and all that.

What if he had pleaded not guilty? Would that have made a difference? Of course not. Unlike us, Hicks is not is a position to take a stand against the kangaroo court that judges him. He has little choice but to enter a plea of some sort. Why a guilty plea then? Only he knows what his reasons where, but it seems to me like a decision based in pure pragmatism.

The point I want to make is that it is not up to the accused to legitimise the actions of the court. Either the process of law conforms to some accepted overarching legal principles, and is legitimate. Or it doesn’t, and it isn’t. The US Military Commissions fall into the latter category for many violations of basic legal principles.

Not enough has been made in the press of the fact that the charge of Providing Material Support for Terrorism didn’t exist prior to 2006 and yet is being applied retrospectively to Hicks’ actions in 2001.

Peter Vickery explains some of the sorry history of so-called ex post facto laws, noting particularly that our Prime Minister condemned them outright in 2004 (thanks Matt for the pointer).

It is frankly baffling to me why this fact would not be widely recognised. For starters it’s not a obscure legal principle like hearsay. Nor is this a principle that invites slippery-slope, shades-of-grey, ticking-time bomb analogies. It’s pretty clear to even a 4 year old that retrospective rules are fundamentally unjust.

Australians should also be reminded of another anti-terror case which was prosecuted on the basis of retrospective law. In 2004 Indonesia’s Constitutional Court, to its credit, found that such a law was being used to prosecute Abu Bakar Bashir for the 2002 Bali bombings, and promptly overturned his conviction.

Obviously the Hicks case is vastly different and I’m not suggesting that Hicks’ conviction would be overturned in similar circumstances.

However it does seem obvious from recent events that the constitutional protections against retrospective law in both the US and Indonesia have proven extremely important in recent times. And Wikipedia tells me that we already have had retrospective legislation applied in this country (though admittedly not for criminal law). So I say we should amend our constitution to prevent this kind of travesty interfering with our legal system. Who’s with me?

If you’re being prosecuted for breaking laws that didn’t exist at the time you broke them, you might as well plead guilty of breaking any number of as yet unknown laws.

Seems like he’s doing whatever he can to get out of there, which seems like a fair plan.

Count the illegal things that have been done to David by the State: held without charge for years, allegedly tortured, finally prosecuted under a law that didn’t exist,

In any game, if you introduce a rule halfway, someone’s gonna cry foul, no matter how young. I think the idea and definition of justice stems from this: consistency in the rules that apply to us. If the rules are changed retrospectively, then what is justice?

So yes, I’m with you there.

I’ll drink to that.