Passion play for Hicks
December 14, 2006 12:00am
Article from: Herald-Sun
AS the world recognised UN Human Rights Day, an Australian citizen passed his fifth year in a tiny single occupancy cell on Cuba.
He is isolated from his family, from his hard-working legal representative, from the prospect of a fair trial and, it would seem, all hope.
It is mind boggling that David Hicks has been left to languish in conditions that would be an affront to any Australian's sense of decency.
It is equally astonishing that while his physical and mental health deteriorate our Federal Government sits on its hands, happy to sell the rights of a citizen down the river.
This is gutlessness in the extreme. Federal Attorney-General Philip Ruddock's claims that Hicks is still likely to receive a fair trial are almost laughable.
What chance does anybody have of a fair trial if they have remained for five years without proper charge, if witnesses, evidence and the opportunity to prepare an informed defence are long gone?
What chance does anybody have if their own Prime Minister has thrown out the presumption of innocence, if the leader of the so-called free world has done the same and described them as a killer?
And, most importantly, if the jurisdiction in which they are to be tried has been ruled by the US Supreme Court as unlawful?
Let's face it, Saddam Hussein got a fairer trial than Hicks will ever have, that is, unless Mr Ruddock and his masters show some spine and demand, as other sovereign nations have, that their citizen be granted a trial, and promptly, in a properly constituted forum, or that he be returned home.
Most people understand that justice delayed is justice denied and numerous legal experts consider that any trial under the new military commission system would breach the Geneva Convention. Also that it would be unlawful in the US and would breach the standards for a fair trial under Australian law.
Even further, these experts believe that if Commonwealth ministers urge a trial under this system it could constitute a war crime under Australia's criminal code.
M AKE no mistake, the Victorian Government abhors terrorism and believes people who commit terrorist acts should face the full force of the law.
That does not change the fact, however, that an Australian citizen, who is not charged with any act of violence, has languished for five years.
This without a trial while those who should be defending his basic rights, as they should any of us, have chosen to do nothing.
Like many Australians, I have been raising my concerns about the treatment of Hicks with the Commonwealth for years and put the matter front and centre at the standing committee of attorneys-general in July this year.
Interestingly, Philip Ruddock contacted his American counterpart on the morning of the meeting as a direct result of the pressure put on him by Victoria and other states.
In November, when the Victorian Government was in caretaker mode, other state and territory attorney-generals signed the Fremantle Declaration and demanded the Commonwealth take action to ensure David Hicks is immediately brought to trial.
Only political and public pressure has forced the Commonwealth's hand in relation to Hicks. The Commonwealth has been dragged kicking and screaming to this point in the face of growing public outrage.
We should be clear here: at last count, 340 detainees held at Guantanamo had been repatriated to their country of origin.
Of the 434 who remain alongside Hicks, a further 110 have been judged as eligible for release.
In a statement last month, the US Department of Defence said: "Departure of these remaining detainees approved for transfer or release is subject to continuing discussions between the United States and other nations.
"The United States does not desire to hold detainees for any longer than necessary."
The Commonwealth argues that Hicks cannot be repatriated because he has not violated any Australian law and therefore cannot be tried here.
Leaving aside the fact that there is legal advice to the contrary, this is a bizarre argument to say the least.
I N effect, and as David Hicks' US lawyer, Major Mori, has argued, our Federal Government is saying it is leaving an Australian citizen to the mercy of Guantanamo Bay because he hasn't committed a crime against Australian law.
What is an Australian passport worth if its holder is left to this kind of fate?
What is Australian citizenship worth if this is the kind of protection it inspires?
As we demand that those seeking this citizenship commit themselves to values such as respect for the rule of law, we must be confident that we can guarantee to provide it -- that, as a nation, we commit to it too.
Rob Hulls is State Attorney-General