The US Secretary of State Condoleezza Rice was quite right to point out after the Iraqi election this week that democracy is not just a western value, but a universal one – one sought by people in the Arab world as well.
President George W Bush made a similar point in an address marking the 20th anniversary of the National Endowment for Democracy. He said, “There are, however, essential principles common to every successful society, in every culture. Successful societies limit the power of the state and the power of the military — so that governments respond to the will of the people, and not the will of an elite. Successful societies protect freedom with the consistent and impartial rule of law, instead of selecting applying the law to punish political opponents.”
They are fine words. But Bush himself has not lived up to them. So it was a fine thing this week to see a US court ordering him to live up to them. A Federal Appeals Court in Washington DC ruled in favour of half a dozen detainees held by the US military at Guantanamo Bay.
Judge Joyce Green zeroed in on the need to limit the power of the state and the power of the military. She said the “President is not authorized to rule by fiat that an entire group of fighters has [few] legal rights”
She held the military could not hold people indefinitely until the end of the war on terror or until the military thought they no longer posed a threat.
She said that the detainees were entitled to due process of law – one of Bush’s stated criteria of a successful society. They were entitled (under the Constitution’s Bill of Rights) to a presumption of innocence, to know the charges against them, to legal representation of choice, to be able to call witnesses and to cross-examine witnesses against them.
All of this has been denied them by the Bush Administration which has set up military commissions which are not required to follow basic rules of legal fairness.
As Judge Green said, “Although this nation unquestionably must take strong action under the leadership of the commander in chief to protect itself against enormous and unprecedented threats, that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over 200 years.”
She denounced the label “enemy combatant” when many of the detainees had not been near a war zone. Some had been caught in Zambia, Gambia, Bosnia and Thailand.
Australia has been complicit in this. Prime Minister John Howard and Federal Attorney-General Phillip Ruddock have not lifted a finger in protest about the treatment of Australians David Hicks and Mamdouh Habib. Ruddock has said he is satisfied with the military commissions.
Unfortunately, Australia does not have a Bill of Rights so the courts cannot correct the excesses of the Executive Government. We saw that so clearly last year when the High Court in a 4-3 majority accepted the Government’s appalling submission that the Government could hold an asylum seeker in detention indefinitely without charge if he had no visa to Australia and no other country would accept him.
This is grim stuff. When the Government behaves this way, we should ask, What next? Who next?
I don’t want to make silly comparisons between the actions of the Australian Government and the behaviour of totalitarian regimes like those of the Nazis or Saddam Hussein. But we should make comparisons between the stand of our government and well-accepted legal standards in a liberal democracy – the one we are supposed to be defending. And the Australian Government fails lamentably in that comparison.
The Labor Party is not much better. It has joined the tough-on-terrorism and tough-on-refugees talk. Its position is at best ambiguous because of its fear of alienating the red-neck vote.
But there are some heartening developments. Lawyers individually and collectively are pointing out the dangers and inconsistency of the Government’s position.
The NSW Bar Association is hardly a hotbed of pinko radicalism. Its NSW secretary Robert Toner said, “The so-called ‘war on terror’, now seems to have, as one of its elements, the removal of the fundamental rights. . . .We’re taking away the very liberties that we say are precious to us.”
The Law Council of Australia has called on the Government to admit its mistake and has taken up the cause of another indefinite detainee – Ahmed Aziz Rafiq in Iraq. He has been locked up for a year without charge.
“The credibility of the legal system in place at Guantanamo Bay is now in tatters and the Australian Government should concede its complicity with the US was wrong,” council president John North said.
C’mon the lawyers. It is about time the Government got some opposition in the absence of the official Opposition.
On the other hand, the discouraging point is that Australia is unlikely to get a Bill of Rights to curb the rotten tendencies of the Executive soon, if ever. This is because it would require a change to the Constitution and changes to the Constitution can only be proposed by the Executive. The Executive rarely puts forward any proposition to curb its own power. It usually twists proposals for change to its own advantage. That’s why they are so frequently defeated. The Prime Minister likes to make appointments, determine the election date, propose legislation some of which compromises basic rights and so on. No Prime Minister is going to propose constitutional change to reduce his (or her) own power.
The US was lucky to get its Bill of Rights very soon after its Constitution first came into force. This week we saw how it can uphold basic rights and the rule of law in the face of freedom-crushing actions of a hypocritical President.
Like the war on communism in the 1950s, the war on terror has been an excuse by the Executive to be completely dismissive of the very freedoms and rights it is supposed to defend. The case for a Bill or Rights in Australia has not been so compelling for more than half a century.