G�day. I�ve just heard the news that Indonesia�s top appeal court has ruled the conviction of a Bali bomber unconstitutional because he was convicted under retrospective criminal laws in breach of Indonesia�s constitution. This could be another Howard scandal in the making.
How on earth did it happen that Australia endorsed retrospective criminal laws in Indonesia when it refused to do so itself so Hicks and Habib could be charged if returned to Australia from Guantanamo Bay? It�s a fundamental democratic principle that you can�t be convicted of a crime for conduct which was not a crime at the time. It�s likely Australia�s High Court would overrule such a conviction, even though the principle is not entrenched in our constitution.
Questions for Howard and co. What involvement did Australia have in encouraging or pressuring Indonesia to enact special terrorism laws after the event and charge the alleged Bali bombers under them rather than under existing murder andconspiracy laws? Why did it not strongly press Indonesia not to do so, to avoid the real risk of the tragedy dragging on for survivors and the families of the dead?
Was this yet another quick Howard fix in defiance of legal advice? Yet another “ends justify the means” play which yet again will end in tears? Let the Freedom of Information requests roll in.
Here�s what I wrote way back in August 2003 in The danger for Australians of approving death for Amrozi:
…Then there’s the question of our blatant double standards on due process. Neither Australia nor the United Kingdom passed retrospective new criminal laws against terrorist acts after September 11. The reason is simple – it is bedrock basic to a Western democracy that the country is ruled by laws, not men. In other words, if your liberty is at stake, as it is for a criminal offence, the law as it is laid down at the time you do something is the law that applies. Otherwise, the society is wide open to capricious ex-post-facto abuses of power by political leaders and the enforcement apparatus of the state.
Yet Indonesia did make its anti-terror retrospective, and charged Amrozi under that law. That law is in clear breach of a specific clause in the Indonesian Constitution banning retrospective criminal laws, the core fact Amrozi’s lawyer will argue on appeal. The Indonesians failed to also charge Amrozi with murder or offences under the law as it stood at the time of the Bali bombing, meaning that if appeal courts strike out his conviction as unconstitutional, he will walk free.
So how could Australia, through Howard and Crean, back a death penalty resulting from the degradation of the rule of law, a core standard the principle our nation says it’s fighting for in the war on terror? Did Australian authorities assist Indonesia in laying the charges against Amrozi as it did in investigating the bombing?
If Australia did not help ensure that the Indonesian judicial process was watertight and scrupulous, our government has failed us in a profound sense. The precautionary principle is crucial in handling the war on terror. It appears this principle has been ditched along with quite a few others in this trial.
A legal injustice – and this one is blatant – gives explosive ammunition to our enemies in the war on terror. How, for example, can we now credibly lobby other governments on behalf of our citizens caught up in overseas criminal proceedings on the basis that our citizens did not receive a fair trial? For the values we are fighting for to survive, we must consistently apply those values in practice.
Sounds so naive now, doesn’t it. But it’s still true.