Retrospective crimes

David Hicks, the Australian held without trial or charge for five years and tortured in Guantanamo by the American military at the behest of the clearly criminal administration in the United States (there! I feel much better now) is being charged and tried for "providing material support for terrorism", a crime that did not exist when the acts he is alleged to have committed occurred.

This raises the spectre of retrospective legislation, which is a running sore on democracy for some time now.

Retrospective legislation is the passing of laws at t to cover acts made at <t. Philosophically it is repugnant, because it makes someone responsible for crimes he or she had no reason to think were crimes, however morally reprehensible they may have been. The Commonwealth has the various War Crimes Acts passed after the second world war to cover crimes committed under the fascist regimes, but the crimes were already crimes, and only the jurisdiction was changed.

Governments will always try to pass laws to cover what they don't like to have happened in the past. The principle of not passing retrospective legislation enshrines a safeguard against this arbitrariness, along with prohibitions against passing laws against individuals rather than the whole of the members of a jurisdiction.These principles of common law are basic, but they have been increasingly eroded in the name of convenience for some time. It has to stop.

All constitutions under common law should have a prohibition against these laws. They must be declared unconstitutional in the most fundamental sense - of debasing the rule of law and permitting political exigency to be applied without constraint. They are fundamentally illiberal, in the sense of taking away rights and freedoms. If an act is illegal, then no later law need be applied (perhaps Hicks could be tried for treason under existing Australian law, where jurisdiction is clear), but saying he committed a crime not on the statutes before he acted is simply to deny that law rules our democracies.

Likewise, draconian laws designed to give government agencies control over people's records and lives for actions that are already illegal, such as terrorism laws when acts of murder and conspiracy already exist, are simply government attempts to get around the hedges that evolved to provide protection against arbitrary arrest and prosecution. And declaring by fiat, without consistency with the rest of the law, that some people are immune from the protection of existing legal obligations like the Geneva Convention, is a mark of a nascent tyranny. Either HIcks and the rest of the "internees" (don't call it imprisonment) are soldiers of an opposing power, in which case all the geneva Convention laws apply, or they are not, in which case their incarceration is simply illegal.

Moreover, neither the United States nor the rest of their allies, has any jurisdiction here. Hicks fought no soldiers of the allies. He did not act on American or Australian soil. He was not legally extradited. He was taken by force and put in prison, period.

Why my government has acquiesced in this travesty of justice is beyond me. No, actually it isn't. Governments always act this way if they are not stopped by law. It's a fact of governance. But it disappoints me that my once-liberal society is now moving towards totalitarianism, inch by inch.

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From Wikipedia: ex post acto

Australia has no strong constitutional prohibition on ex post facto laws, though narrow retroactive laws may violate constitutional separation of powers principles. Courts do interpret statutes with a strong presumption that they do not apply retroactively

while it is specifically unconstitutional in the US under Section 1 Article 9.

By natural cynic (not verified) on 10 Mar 2007 #permalink

your problem begins with the notion that you live in a democracy. aristotle and tom paine would be amazed at your ignorance. george orwell would not. although he invented newspeak and doublethink to describe activities in mind control in totalitarian dictatorships, he was well aware of, and wrote about, the similar processes at work in capitalist oligarchies.

once you grasp the notion that politics is about power, and the only rule is 'win', you cease to be surprised at the activities of politicians. it may take you longer to be unsurprised at the submission of the 'beta' population, but the human race has been functioning at the 'baboon troupe' level of politics for a long, long time- submission to the 'alpha' has been bred into us.

By al loomis (not verified) on 10 Mar 2007 #permalink

Cynic: Australian law, like most common law jurisdictions, uses precedent and convention where constitutional restrictions might apply in the US. Our constitution is a weak thing compared to the US Constitution, because many of the constitutional facts of our commonwealth are implicit.

Al: Yes, this is a fact about power. Which is why democratic republics were formed, to hedge against this.