Presumption of innocence

One of the pillars our legal system is built on is the idea that the law must consider people innocent until proven guilty. I learned that in my few years of soul destroying legal studies. And from Law and Order. Which I don’t watch. The courts have a responsibility to consider defendants innocent until proven guilty. As does the media – they can’t be seen to unduly influence court proceedings. Trial by media is dangerous – particularly in jury trials where perception can become reality.

Dr Death Part 2: the terrorist Indian is a case that has thrust the doctrine of presumption of innocence into the spotlight. The government has been lambasted for revoking Dr Haneef’s visa before any conclusive findings have emerged. While political pundits point at this move as blatant wedge realpolitiking (creating a divisive issue in the national interest) and point scoring with the critical (in terms of importance rather than critique) dumb masses – I’d say the onus on the government is slightly different. I don’t think the government needs to function under the same umbrella doctrine when it comes to the potential innocence of a potential terrorist. Their responsibility is different. Government’s must be slightly prejudiced to protect their citizen’s interests. The burden of proof is also different – extradition is a different kettle of fish to incarceration. Kicking someone out of the country for possibly being a threat to the populace is not the same as removing someone from the public because they’re a confirmed danger.

For anyone outside the judicial branch of government to presume the innocence of anyone charged is for us to presume that the police force, the prosecutors et al are incompetent and every arrest and charge is wrong.

While Haneef is probably – on the weight of the evidence published so far – only slightly more dangerous than your average Queensland medical practitioner – I don’t think the government can be criticised too much for wanting to put the interests of their citizens at the top of their concerns. Even if it’s been a critical success (in the positive opinion sense of the word) with the critical masses (in the essential to election success sense of the word) giving the government’s approval rating a slight bump upwards in the polls – that’s surely no reason to be cynical…


martin says:

The government already has a doctrine that they are supposed to operate under. It’s called the doctrine of the separation of powers – the Westminster System. It is supposed to prevent the kind of abuse of power that we’ve just seen.
This cheap stunt has again exposed your government’s contempt for another foundational western idea.

Islamic extremism is succeeding ahead of schedule.

Nathan says:

My government? I’d suggest “our government” – even if you didn’t vote for them they are yours too.

Cheap stunt maybe. Andrews will have a hard time getting off the hook on the visa debacle. But I can’t see any alternative views presented in Australia’s political orthodoxy.

I would suggest that rather than this situation being a demonstration of the breakdown of the separation of powers it shows that the Westminster System is alive and kicking. If it were not Haneef would find himself stuck in some mandatory detention centre or terrorist holding facility.

While the government acted rashly (some would say) in withdrawing Haneef’s visa after he was granted bail – they do not operate – and can not afford to operate – with a “heads in the sand” presumption of innocence mentality. That is for the judicial branch.

Nathan says:

Not sure how this has furthered the cause of Islamic extremism. Care to elaborate?

martin says:

Most people don’t understand this is a war of ideas.

1. You’re right that in the end the Westminster system came through. However, it could have easily gone the other way. The overiding govt solution to terrorism is the “booga booga”.

2. The goal of Islamic extremism is the breakdown of Western Civilisation, replaced by an Islamic superstate. So far, in the last seven years, the west has seen democracy and freedom rapidly eroded. Human rights, law, government, press freedom, international law have all taken major hits. This creates a perfect environment for tyranny. Our goverments have been lowering our standards to counter the visible terrorist threat – but we are losing the broader war of ideas – and most Aussies won’t wake up to it until it’s too late.

Leah Maria says:

Martin, if we never acted because things could “easily go the other way”, things woudl never get done. It’s a moot point. Invalid.

Nathan says:

What would you have the government do in the face of the transcripts that have arisen in the last two days?

While I’m no fan of politicising terror – and I suspect the government will continue to play their “national security” credentials in the lead up to the next election – they’re between a rock and a hard place here. Short of banning Islamic migrants and outlawing Islam there’s no easy solution.

How many “democratic” principles need to be sacrificed in order to prevent a “theocracy” – in theory possible if the majority want it. Where do our democratic ideals come from? Sure freedom of the press is held up as a pillar of democracy – but some regulation is important. Take the editor of the West Australian as an example – he is more than happy to defame, slander and ridicule whoever he wants in the name of “free speech” to further his own political interests. This is not “democracy” – his voice is not equal to those who don’t share his position of influence.
The globalisation of communication has altered the notion of democracy. Two party politics limits voter choice. The larger governments become the less representative they truly are of the people who elect them. I’d say there are plenty of hurdles facing your notion of pure “democracy” – I’m not sure international law is all its conceptually cracked up to be. The notion that there’s a common moral ground for all nations and legal systems to come under is somewhat flawed. The notion of high level government decisions having an impact on day to day life has largely been lost. I for one will not alter my behaviour on the basis of loud speakers being installed in public places, increased presence of security cameras – or even a national identity card. Law abiding citizens have no need to fear these things. The people complaining are obviously complaining because they have something to hide – or fear that they will one day. End of rant.

martin says:

1. I’m talking about Western Culture – not just democracy. Dignity for all individuals, regardless of race, gender, age is a value that is a product the Gospel. It runs through Western culture because of the influence of Christianity and its core idea of grace. It’s an idea that enables the notion of universal human rights, Augustine’s Just War Theory and underscores crucial advances in western civilization such has abolition of slavery, and the Nuremberg Trials (which provided a legal framework for war). These ideas run directly opposite to cultures and theocracies based on fear and control.
If you brush aside international law (as has the U.S.) you brush aside any legal protection we (humans) have against organized genocide, torture, rendition and war crimes.

These and many other freedom values enabled the Aussie way of life. Things aren’t too bad yet, but the checks and balances are being systematically removed for the ‘war on terror’.
Think of it this way. Would you trust any future Australian government (Islamic / Socialist / Right Wing Nationalist) with the ‘anti-terror’ powers that our current government has created.

2. As regards surveillence powers: neighbourhood snitches, ID profiling, phone tapping and video surveillance which are now being rapidly deployed in the west – talk to East Germans and North Koreans to find out what that did to the fabric of their society within 10 years. Orwell was right.

“They who would give up an essential liberty for temporary security, deserve neither liberty or security”
Benjamin Franklin

martin says:

As for what to do in the Haneef case. Firstly whoever his relatives were, they were rank amatuers at terrorism. I don’t buy the al qaeda connection for a minute.

The smart thing to do with Haneef would have been waited for him to go back to India, raid his computer/house etc. If anything suspicious was found – THEN cancel his visa, and make him show cause as to why he should be allowed back. He was not a danger. The arrest and detention was embarrassing nonsense.

Nathan says:

I’m more a glass half full guy. Plus I tend to blame the dictators and rise of socialism for the demise of East Germany and North Korea – South Korea, which the US took control of hasn’t turned out too bad.
I’d also suggest that Western civilisation isn’t all it’s cracked up to be. I certainly wouldn’t be holding up international law and universal human rights as the be all and end all of our “free” society. Ask the Sudanese how they feel about the west’s applications (or lack thereof) of these concepts.
I guess my point is that the system hasn’t really worked up until now – so maybe it’s time for radical rather than measured changes to be made.

martin says:

Radical, like waging a war in the Middle East?

Well we’ve tried that before nothing radical about that. Our allies in the 80’s were Saddam Hussein and Osama Bin Laden. A radical approach would be to back someone who isn’t a dictator or terrorist. Or more radical still, mind our own business.

Nathan says:

I like the last one. I think there’s an inherent arrogance in the west’s belief that our form of democracy is the be all and end all of government. I can’t advocate implementing a US styled government anywhere. Their health system and industrial relations laws leave a fair bit to be desired.
It’s easy to throw rocks from the sidelines though – our politicians are still human and fallible. Having seen the “evidence” as it has been presented I can understand why Andrews made the call he did.