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"...public opinion deserves to be respected as well as despised" G.W.F. Hegel, 'Philosophy of Right'

Haneef case + legal reason « Previous | |Next »
July 26, 2007

Tony Morris, QC, sums up where things stand in the Haneef case:

“Australians can no longer have implicit faith in the integrity of federal police investigations, in the fairness of federal prosecutions, or in the responsible exercise of federal executive powers. If the AFP were doing their honest best, they must be monumentally stupid. The only alternative is they manufactured a false case.”

And that's about all we can safely say on the evidence that is public. The inference is that the legal system has got a problem. It is a difficult case and this means that judges decide decide hard cases such as this by interpreting rather than simply applying past legal decisions.

So it is an important step that the Commonwealth Director of Public Prosecutions Damian Bugg, QC will personally reviewing all the materials of this which has been plagued with mistakes and leaks. So legal reason intervenes to ensure the judicial systems operates in accord with its norms or ethos of justice.

The legal system has long abandoned Austin's utilitarian view that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience. It has also largely abandoned the classic positivist position that there is "no necessary connection" between law and morality.

What we have in play is an expression of law as a moral issue. As Dworkin argues in Law's Empire law is an 'interpretive' concept, that requires judges to find the best fitting and most just solution to a legal dispute, given their constitutional traditions. According to him, law is not entirely based on social facts, but includes the morally best justification for the institutional facts and practices that we intuitively regard as legal.

| Posted by Gary Sauer-Thompson at 8:06 AM | | Comments (26)
Comments

Comments

A major concern is that various government ministers (and pundits) have conflated the court proceedings with the administrative action of cancelling Dr Haneef's visa. As a result, some of the anger that should by rights be directed at the new 'anti-terror' laws and at the way Andrews has applied them will be directed instead at the AFP and the DPP. Most people's understanding of our institutions is so shaky that the government will cop the blame anyway so I don't suppose the government's dissembling will do it much good, but it's typical of the way Howard's mob endlessly misrepresent events.

Ken,
there has been a conflation due to the executive overriding the courts. But the police have also bungled the investigation And so has the DDP in Queensland---whoever that is-- as the Commonwealth has sfailed to adduce any evidence about Kaneef's alleged terrorist activities.

On the Andrew's intervention could not the character test be seen as a heavy-handed instrument which the government can use when it was unable to establish other lawful grounds for its action?

Andrews used the character test to cancel Dr Haneef’s visa in advance of any criminal conviction and in circumstances where the government says that it has secret information about Haneef which has not been produced to his lawyers or to the Court.

Tis time Andrew's power is trimmed.

Well, this has been a prophetic thread.
Tonight in the garb of lord high executioner, Peter Faris has been somnolently intoning for the heads of Bugg and Keelty, allowing for meantime a retreat under cover of darkness for the AG. Howard, course, is already thousands of miles away doing a saintly Retreat with the troops. Oh, aesthetics!
Meanwhile, Andrews is as about to admit he was wrong over the smeared Dr Haneef as Dick Adams is over Tassie old growth woodchipping .

Paul,
Michelle Grattan sums it up well in The Age:

Haneef found himself in the land of Kafka. The Government was in a more political place, playing to national security. By innuendo and directly, it painted Haneef as a bad man. But public opinion was sceptical and sections of the media persistent.

She says that the Government expected the Haneef affair to play better politically than it has.

I agree.They have been caught short. It's backfired. It has a rotten smell. It's a debacle. Reputations need to be saved.

All the signs are that the Howard government is likely to nip the issue in the bud: deport Mohamed Haneef asap even if terror charges against him are dropped. If so, then the police and the Government will need to move to deflect blame over the handling of the case.

The police have already started. Mr Keelty is blaming the DPP for the false claim that the SIM card Haneef gave his second cousin Sabeel Ahmed had been found at the scene of the attempted terrorist bombing at Glasgow Airport. DPP prosecutor Clive Porritt had given the wrong information to the magistrate at Haneef's bail hearing.

Who gave the DPP prosecutor the information? Didn't the police give rolling press releases on this case?


Gary,
things must be bad when Janet Albrechtson is questioning what has happened:

One need not venture anywhere near the intellectual wasteland of civil libertarians and their academic, legal and media boosters to believe that there is something dreadfully wrong with the unravelling case against detained terrorist suspect Mohamed Haneef. If the Howard Government fails to grasp that the growing unease over the handling of the case against Haneef is not confined to the lunatic libertarians, it risks undermining the case for anti-terrorism laws, destroying the Government’s credibility on national security and weakening its claim on the next election.

How about that? Even the conservatives can smell the bungles:
Unfortunately, the mishandling of the Haneef case gives these hysterical critics too many free kicks. Meanwhile, by refusing to take us into their confidence at a point when the Haneef case is becoming a laughing stock, Canberra is choosing to play with one hand tied behind its back.

Poor Janet has been let down in her fight to the death agains the Islamic terrorists in our midst.She concludes by saying that If the Government and the AFP fail to come clean on Haneef, they risk destroying the case for these laws. That would be a win for the libertarian lobby that the rest of us can ill afford.


Nan,
Albrechtson sure goes on about the 'hysterics of the irrelevant suspects who succumb to knee-jerk mania against the laws necessary to fight Islamist terrorism.' This crowd even 'regard any act of an executive government concerning national security as an act of inherent evil.'

According to Janet the civil libertarians even argue that 'Australia is onto the way of becoming the Third Reich.'

Talk about demonisation through name calling and derision. The next step is to argue that the civil libertarians are traitors because their actions challenge and undermine the anti-terrorism laws.

Albrechtson may go about the “intellectual wasteland of civil libertarians and their academic, legal and media boosters” who are protesting against the treatment of Mohamed Haneef. But, as you point out, she also talks in terms of bungles (without of course saying who bungled) and so we another case of self-contradiction.

Isn't what Albrechton is asking for ---the Government and the AFP fail to come clean on Haneef--- similar to what the civil libertarians are asking for?

Gary
Albrechtson covers her concerns about the Haneef case behind a smokescreen of vitriolic attacks on civil libertarians. Unlike Peter Faris QC Albrechtson does not have the honesty to state her concerns cleanly. She hides behind her smokescreen.

After these conservative interventions what do you make of both Kevin Rudd Julia Gillard insisting that we must take the Government on trust, both on the criminal matter and on Immigration Minister Kevin Rudd's intervention to cancel Haneef's visa?

Nan,
as expected. The ABC reports that at a joint press conference with Australian Federal Police Commissioner Mick Keelty, the Commonwealth Director of Public Prosecutions, Damian Bugg, said that one of his prosecutors had put two errors of fact before the court.

Bugg appeared to accept DPP responsibility for one, but blamed the AFP for the second.

The first related to the SIM card and was based on a misunderstanding of the facts The second related to the residence of Dr Haneef in the UK and was based on incorrect material provided by the AFP.

So the case against Haneef fails. The charges against Dr Haneef were dismissed in the Magistrates Court.

So what will Howard and Andrews (Howard is running this) do now?Andrews says they have compelling evidence provided by the AFP that Haneef is a bad character. I reckon he was, and is spinning it.


Gary
The Age says that Kevin Andrews has backed of in response to the DPP's decision to drop charges against Dr Mohamed Haneef.

Andrews says he has made:

a residedntial determination for Dr Haneef. Rather than being detained in immigration custody, he will be released into reisdential detention, which means he can reside in his unit on the gold coast.If he wishes to reside (elsewhere) any reasonble request can be met.

That means that under the conditions of his release, Dr Haneef would be required to report to Immigration Department by telephone either every day or every few days, and once a week report in person.

You can colour it any way you want, but Andrew's a political stunt has just gone topsy turvy.

Albrechtsen is a black propagandist and mercenary in the Frank Devine and Paddy MacGuinness tradition . These people practice something pretty much akin to what the Bible condemns in outraged terms, as "Simony".
She's been sent in to clean up the mess left by Howard, Ruddock Andrews and but since her side of politics has been caught red-handed this time, she has only the child's recourse when caught out, of the blaming her victim lie.
Through loaded, ad hominem hyperbole and invective, she tries to shift blame to educated people, civil libertarians, lawyers and concerned citizens who warned early of the flaws of these reckless laws, driven into hasty creation by amoral opportunist and unreflexive ideological and reactive propaganda and alibing imperatives.
But no. You can't give any person the arbitrary powers these laws give mortals, "power corrupts" even saints let alone civil servants and politicians.
The premises upon which these new "laws" came into being were flawed. Not least that most of essential of notions, that the foundations may be removed and the edifice still stand.
This is why conservative thinkers like Malcom Fraser also forsaw the danger.
The laws the Ruddock laws so rudely superceded had came into being not through accident but through millenia of trial and error.
Albrechtsen and the other intransigents need to realise that concepts of government acountability, habeous corpus and "innocent'til PROVEN guilty" are not ornamental superfluities invented by capricious lefty pests to subvert 'real" law, but an originating generating factor and curentintegral part of a civilised society actualised through the interactions that constitute the phenomena of history.

So who's head rolls? Howard will look bad. How does Rudd look in all this?

Howard has his out. He says he never said Haneef was guilty. He just dog whistled all around it providing the political context of needing to be tough in the war on terrorism. For example this:

I will make no comment at all on the substance of the allegations … I will compliment the police on their assiduous work. I will say that Dr Haneef is entitled, like any other person, to a presumption of innocence. All of this is a reminder that terrorism is a global threat. You can't pick and choose where you fight terrorism. You can't say I'll fight it over there but I won't fight it here. It's also fair to say that the anti-terrorism laws that this Government has enacted are all, to their very last clause needed … If we need to strengthen them, we will … But I am not going to make any comment about Dr Haneef's case.

As Grattan says Howard is a master of the art of the highly interpretative no comment.

Yet now that I look at what Andrews has done, Haneef is actually no better off. http://www.roadtosurfdom.com/2007/07/27/detention-at-ministerial-pleasure/

The quote Gary cites is typical of the mealy mouthed devolution of truth that is the Howard trademark.
Howard starts by saying he makes no comment on the allegations. But instead of saying he will withold judgement and further comment 'til the facts become clear ( if saying anything further at all!), he makes a potentially devastating indirect ( and NOT accidental )comment from the point of view of struggling Haneef, that he will "compliment the police on their assiduous work".
Must be open and shut!
As it turns out chickens were counted way, way too early. The time could have only been after any ensuing trial. Howard offers the observation that Dr Haneef is entitled to "a ( not "the" ) presumption of innocence". But he does NOT then later overrule minister Andrews who, via a defacto attack repulsive and slanderous delivered via the medium of implications of revocation of bail; for its perverse and unjustified denial of the assumption of Dr Haneefs "character" , intervenes even further to reincarcerate Haneef, against and thwarting the judgement of, the magistrate who had bailed the man.
What Howard should have said, if anything, to follow consistently from his comment about "presumption of innocence" was to SOLELY request that people not jump to conclusions concerning Dr.Haneef, given lack of completed investigation and conclusive evidence.
Instead he ramped up fear about "Terrorism and commented about "picking and choosing" battlegrounds. As to this last he would be obliquely referring to complaints from the legal profession against the suspension of precisely those legal maxims and procedures that ensured "presumption of innocence".
Once again a covert remark implicating Haneef's villainy; the sheer seriousness of the removal of those very features and ideas that normally apply as to the role of evidence in allowing a determination of innocence or guilt.Dr haneef is such a devil we cant apply normal rules of evidence and presumptions of evidence?
It takes a moment to chew through the implications; the sheer magnitude of the overthrow of justice and civilised society implicated in this, as deduced by logic from Howard and his ministers statements and conduct including even now.
To give Haneef justice we must deny him it.
To protect civilisation from terror we must impose it- exemplar the unhappy subject of Dr Haneef.
Oh, Brave New World!
And far from offering repentence, politicians brazen it out, talking stridently of "strengthening" the "terror" laws.
Longer detention, hidden evidence, getting rid of bailing provisions still available that were so egregiously overruled by that pig Andrews ten days ago.
That is, weakening laws yielding justice, which is what civilisation is about and makes civilisation what it is, in favour of the creation of a arbititrary and coercive terrorist state aiming at and valorising the demolition of logic, evidence and truth above prejudice, power-lust and self interest..
What's happened is not a "mistake", the only mistake was incompetence, inevitable given the scope of the laws for abuse by officials. The perverse,consciously conceived recipe for a DELIBERATELY installed dictatorship is only postponed!

Ken,
My interpretation is that Howard is running this campaign out of PMC. Howard's re-election depends in part on getting the scalp of a terrorist enemy within.

Kelty and Andrews are the generals taking orders from the high command Andrews and Kelty are using their powers to implement the orders as best as they can.

They will use every trick in their book to ensure they have Haneef locked up. The politics is quite naked now. It's high stakes poker now. Continue the play for as long as possible because the ALP might just succumb to the wedge.

However, Rudd has been successful in dodging the wedges so far. As Michelle Grattan points out Rudd's broad strategy is more about dodging wedges than being a small target,which was Beazley's strategy.

Paul,
well the law has done its job--Haneef is a free man. That is not the right decision for the politics of terrorism run by Howard. As the law fades into the background the politics comes into the foreground.

It was always there directing things of course, but it spoke softly and was in the shadows. Now it is naked and you can see the iron fist. Haneef cannot be allowed to be free. That would spell defeat. That cannot be allowed under any cost. Howard retaining power is the bottom line and the end justifies the means.

If the terrorism laws don't work to ensure his unfreedom (they need to be toughened up says Howard) then other ways will be found to keep Haneef unfree. The strategy is pretty clear.

They risk losing the public opinion on this one. The formation of public opinion is going against them.

Well, all I can say in response is, if the law has done its job, its only through a mistake of colossal proportions as to the vehicle for its progress.
As you indicate yourself, had the antic run even half-well for the government, the momentum of stoked public opinion would have had a victim hung drawn and quartered and the laws entrenched beyond any further questioning, ever.
That things failed may be on one level because the very structures of these laws relative to morality, reality and predicted behaviour made that likely, does not deny the probability that luck, as much as the "law working the way it should" is involved.
Can you PLEASE explain how an individual like "General" Andrews lives with himself or gets to sleep at night?
Particularly in view of his self -proclaimed moral superiority over the rest of us?
Makes me ill, it does.

Paul,
if we make a distinction between the legislature creating the terrorist laws and the judicial system administering the law, then the critical perspective in the Haneef case lies within legal reason, not political reason.

The case failed because it did not meet the legal criteria for procedurial justice. Legal reason could not turn a blind eye to the blunders by the police and the Queenland DDP.

Paul
Consider this exchange yesterday between Kevin Andrews and Chris Uhlmann, an ABC interviewer, his use of the Migration Act to detain an innocent man based on secret information provided by the police.

............................................
"Andrews: Ultimately, this can all be tested because there can be reviews in the courts and the courts have the ability to test the information.

Uhlmann: Well, minister, I understand under the act, section 503 of the Migration Act means that no court, no parliament, no parliamentary committee and no person can actually ask you to reveal what you were told by police. Isn't that correct?

Andrews: Well, that's true, subject to being advised that it's safe to release some of that information. And obviously where national security is of paramount interest, it's important, it's crucial that we don't reveal things which could lead to a situation potentially that someone who has been acting contrary to the interests of Australia and Australians could be involved in some criminal behaviour which we would then be precluded from actually investigating and even charging someone with."
...........................................
Andrews is plainly dishonest--lying-- about the role of the courts. Andrews is not accountable to anyone in his exercise of power.

Paul,
Consider this statement from Kevin Andrews (Thursday's press release) Howard's Immigration Minister in which Andrews dumps on Rudd because Rudd won't criticize Howard.

...............
"Kevin Rudd and Julia Gillard have today said that they believe the Australian Government has acted in 'good faith' and 'handled appropriately' the cancellation of Dr Haneef's visa. The Australian people deserve more than cheap talk from Mr Rudd and his deputy. They deserve to know exactly what action Mr Rudd would take if he became prime minister. It is not good enough for Mr Rudd to simply say 'me too'.

"It is about time Mr Rudd started telling the Australian people what decisions and actions he would take as alternative prime minister in order to protect the Australian people from potential terrorist threats. The Australian Government is committed to taking all necessary precautions when acting to protect the safety of every Australian. The Government has made it clear that it will never compromise on such matters.

Mr Rudd, on the other hand, should explain what action he would take in such circumstances and he should also guarantee the Australian people that he would not be subject to pressure from the likes of [the Queensland Labor Premier] Peter Beattie and his state colleagues. If Mr Rudd wants to refer to himself as the 'alternative prime minister', then it's about time he started acting like one and stopped hiding behind the veil of opposition."
......................


The actions of a desperate man who has to take the shit for the cockups whilst Howard scoots free. Andrews ends up isolated with egg all over his face. He is now exposed as a minister using his executive powers to override the powers of the judiciary.

That excessive use of powers was compounded by Andrews ' failure as a minister to provide any more substantial reason than the flawed and flimsy evidence put before Brisbane magistrate Jacqui Payne.

Andrews had gone too far and was too heavy handed.

In theory and at these present times of terrorism in the world. Nailing a terrorists arse to the wall in Australia would act as a visual deterrent.Of course some would say that it would have the opposite effect. There is always an opposing view point in all these types of things.
Unfortunately this time they failed to find a Real Terrorist. And of course the media would of been pouring petrol on the flames regardless of whether Haneef was or wasn't a Terrorist.
So I suggest that the Government pays all his legal expenses( if there are any) Hand him a cheque for $2 million and put him on the plane with a letter to say that all charges were unfounded and dropped so as to not hinder his future travel. 2 million in India would be a very princely sum and I am sure his last words would be while wiggling his head. " Oooo dats velly velly good" end of story.

Les,
I see that Haneef has gone back to India after the Federal Government approved his request to leave Australia yesterday.

The disgraceful treatment of Mohamed Haneef has all the hallmarks of a typical Howard Government political play that needed a terrorist to help it to cling onto power.

Nasty, divisive, cynical and, of course, no offical involvement of the Prime Minister himself, evn though his hand is all over it. The fall guy is Immigration Minister Kevin Andrews.

Interesting way to treat Indian doctors who come to Australia to work in our health system to make up for workforce shortages. However, you could argue that scientific education predisposes people to terrorist inclinations.

Perhaps Australia is getting too much like the U.S in that everything bad that happens falls at the door of the Leader. Rudd would of followed the same course I suspect. Reminds me of that song "Blame it on the Kelly's" Rub out Kelly's and insert John Howard.

"Reasonable Suspicion" Who has it and what can it be used for now needs to be debated.

As for Haneef I wouldn't be at all surprised if he comes back to Australia. Depends on compensation claims I suppose.

Gary, The politics is quite naked now.

It was interesting that the government and Haneef's lawyer fought the case in the public space with leaks galore to the media.

The Howard government established a state of exception which meant the trial was no longer judicial but political. That meant it had to be fought, not in the locality of a court room, but in the political, or public space.

So the trial was a political one not a legal one. That would suggest the outcome and consequences would be political too.

Cam,
you are right. Andrews is continuing the fight. He is reported as attacking Dr Haneef's decision to leave Australia so quickly after his release from detention. "If anything, that actually heightens rather than lessens my suspicion." Andrews also refuses to reinstate Dr Haneef's visa.

The minister is unwilling to restore the visa because to do so would admit what everyone, including Australian Federal Police Commissioner Mick Keelty, knows -- he made a serious error in cancelling it in the first place.

At the political level demands grow for an independent inquiry into the handling of the Haneef case — from federal Labor, the Greens, the Democrats, Queensland Premier Peter Beattie and the Australian Council for Civil Liberties.

The politics of terrorism was blocked by legal reason acting according to its principles. The checks and balances are working.

I wonder what Labor will do if Howard tries another terrorrism wedge by toughening up the anti-terrorism laws. Albrechtson provides the rationale:

Nor do we want politicians, the police or prosecutors to lose their nerve about taking action for fear of getting it wrong or out of fear of criticism. Mistakes, and criticism of those mistakes will be made and will lead to improvements in practice. Indeed, we may have to accept longer detentions in the future if we are serious about confronting and beating the scourge of terrorism...Protecting our right to catch a bus or a train or a plane without being blown up means impinging on the rights of those suspected of having links with terrorism. Some of those suspects will be innocent. But isn’t it better that we detain them and investigate the evidence instead of sifting through the twisted metal of blown up trains and human remains after a terrorist attack if they turn out to be guilty?

So the way Haneef was investigated and handled is okay according to Janet's logic, including the actions of Andrews.