CHOICE, RECONSIDER A COMMITMENT, YOU HAVE THE RIGHT TO CHANGE YOUR MIND

Michael Costello: Don't blame the courts for Bali trip-upsAugust 27, 2004
THE rule of law is a dry and dusty-sounding concept. In fact, it underlies the most fundamental of all our freedoms, which is that we shall not be deprived of our liberty or subjected to punishment by the arbitrary decision of our rulers, even democratically elected rulers. Independent courts, operating according to law, in accordance with fair procedures and resistant to political or public pressure -- these are more important to a free society than democracy, as the citizens of Germany found when they democratically elected Adolf Hitler, who knew only one law and that was the will of the Fuhrer.Few things so threaten the rule of law as the fear and uncertainty consequent upon war or large-scale terrorist acts. Thus, in the US, the terrible events of September11, 2001, led to the passing by a shell-shocked Congress of the USA Patriot Act, which deprived foreigners and even US citizens of some of the most basic protections of the rule of law.
This same fear-filled reaction by the US has led to the detention for years, without charge or trial, of two Australian citizens, David Hicks and Mamdouh Habib. One of the great misconceptions is that now Hicks has been charged, if he is acquitted he will be released and can return home. John Howard asserted this only two days ago. He is wrong. According to Colonel David McWilliams, the US spokesman at the Hicks hearing, even if Hicks is found innocent, he will stay in custody if the US continues to judge him to be an "enemy combatant".
In other words, a man declared innocent by a judicial process, even by a military judicial process, will be deprived of his liberty at the will of the ruler. Nothing could be more contrary to the rule of law, to the basic concepts of liberty, for which the US purports to stand.
In sharp contrast to the US, Indonesia has acted to preserve the rule of law. Its police have been magnificent in tracking down the terrorist murderers of Bali and the Marriott Hotel in Jakarta. Under Indonesia's new anti-terrorist law, some of the Bali bombers were convicted and sentenced to death or life imprisonment. But Article 281 of the Indonesian Constitution specifically prevents retrospective criminal prosecutions. And so the Indonesian Constitutional Court last month declared that the anti-terrorist law could not be applied to those involved in the Bali bombings because those bombings happened before the anti-terrorist law was enacted.

It is understandable that the family and friends of those killed, and indeed all Australians, are outraged at the thought that these killers may go free or suffer some lesser punishment. Wholly justifiable rage and grief rightly demand proper punishment for these terrorists. It's in these circumstances that the rule of law comes under greatest pressure.
This is no loophole, as it has been described in some Australian media. Retrospective criminal law is anathema to human freedom, particularly a retrospective law that contains the death penalty. It says that someone can be put to death for a crime that did not exist at the time they carried out the acts. When Mark Latham suggested earlier this year that Australia should pass retrospective terrorist legislation under which Hicks and Habib could be tried in Australia rather than in the US, Howard and Attorney-General Philip Ruddock said this was likely to be unconstitutional in Australia. "It is fundamentally wrong to make a criminal law retrospective," Howard said.
It is unfortunate that, under pressure when this matter first arose in Indonesia, the chief justice of the Indonesian Constitutional Court said outside the court that its decision would not apply to those Bali bombers who had already been convicted, only to future cases. This is clearly wrong under their law. It would be wrong under Australian constitutional practice.
Only yesterday we read of polling results that show Australians regard Indonesia as our greatest threat. If so, the best way for Indonesia to cease being a threat is for it to continue its extraordinary progress away from its dictatorial past and continue down the road to democracy and the rule of law. We should be praising Indonesia if its courts refuse to succumb to internal pressure or external outcry and properly implement the constitution and broadly recognised principles of the rule of law.
This does not mean we should cease putting pressure for the Bali bombers to now be charged under the criminal law that existed at the time of the Bali bombings. Latham is right to urge vigorous action. Howard would be right to pursue it. The principle of double jeopardy will not affect these cases in circumstances where convictions are quashed as unconstitutional, rather than being reversed.
We demand justice for those innocents who were murdered and burned, and whose lives and families' lives were ruined. But to ask for justice, we must give justice. So while we should passionately urge the Indonesians to pursue these killers, we should support their courts in applying the rule of law.