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Politics Overrides the Rule of Law

Malcolm Fraser

I do not know if he is guilty or innocent, he was certainly wild and foolish but that is not the point. The point is justice, the Rule of Law and due process.

Some people believe the Hicks saga is over. Some people believe the sentence was too light because he was a terrorist anyway. Some believe he was treated harshly and without justice. Others believe that what has happened over the last week was cooked up between governments to minimise the political damage to the Australian government through this election year.

If the fraudulent Military Commission process in the Hicks case had not been concluded, the government would have lost even more than it has lost. If Hicks had been given an extremely heavy sentence which the Military Commission law permits, the government would have lost more again. If Hicks were released before the election and were able to speak personally about events in Guantanamo Bay, the fallout for the government would be considerable. So it is the best result for the government, I do not believe by accident.

The Military Commission is controlled, in the first instance by the military, in reality by the United States government. Despite Australia’s silence and compliance in matters of fundamental policy, whether in relation to Iraq or the War on Terror, or the conduct of affairs at Guantanamo Bay and the Military Commission trials themselves, up to this point the American government had done nothing at all to repay Australia for its unseemly acquiescence.

Both governments will say: Hicks has had his day in court, he pleaded guilty, he has been justly treated. What we really need to concentrate on and to understand is that Hicks did not have a day in a court. He had a day in a fraudulent tribunal, controlled by a special law, which the Americans would never dare to apply their own people. A US citizen would be free to take a ruling from such a tribunal to the Supreme Court of the United States and the Supreme Court would say that the Military Commission does not provide justice.

What we have seen is the end result of unremitting and mediaeval pressure on Hicks. A pressure increased by threats of a long and continuing sentence in jail, by what Hicks would have believed to be a guaranteed guilty verdict, regardless of whether he were guilty or innocent, because that is what the system provided for. If he were to plead guilty, he was offered a way out. That also means that the particular evidence against Hicks did not have to be revealed. Remember that the more serious charges against him were struck down for lack of evidence. After everything that had gone on, Justice Susan Crawford could not have struck down all charges. She let the least important ones stand. The guilty plea meant the evidence or its sources did not have to be revealed, or the means by which it was collected made clear.

Hicks’s guilt or innocence is an open question. A plea of guilty was extracted from him by the pressure exerted upon him – and by the fear of that pressures continuing without an end in sight. What man would have pleaded otherwise?

I do not know if he is guilty or innocent, he was certainly wild and foolish but that is not the point. The point is justice, the Rule of Law and due process. If our government is prepared to allow any one of its citizens to be sacrificed on the altar of expediency, if our government demonstrates that it is not really concerned for justice, for a fair process, for one person, then none of us know whether circumstances might arise in which the same lack of care, lack of concern, will be exhibited in relation to ourselves.

The Rule of Law, its equal application to all people, is the most fundamental principle underpinning our democracy. In some ways it is more fundamental even than the right to vote. A government that breaches that principle so clearly, so plainly, so blatantly, a government that asserts that the Military Commission has provided a legitimate day in court, is a government that on this issue stands condemned.

I am convinced that there was a political settlement to get rid of the Hicks case, cool it, calm it, wash it out of our hair; it has become too hot to handle. David Hicks has been silenced until after the Australian election.

What has happened has stained Australia’s reputation. It will take a different example and a different concern to repair the damage – damage that we should not forget.