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Politicians should not put people in jail

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Politicians should not put people in jailPoliticians should not put people in jail. Nor should they override a court decision to grant bail. If police or prosecutors inadvertently make a terrible blunder, due incompetence or zealotry, they should correct it at the first available opportunity. These would seem fairly uncontroversial propositions. But not, it seems, once someone is tainted by a whiff of any alleged connection to terrorism.

Despite the fact that crucial information provided to a court has since proved false, the Immigration Minister, Kevin Andrews, says he has no intention of reviewing his decision to incarcerate Dr Mohamed Haneef in an immigration detention centre. His decision was taken one hour after a magistrate granted Haneef bail on a charge of recklessly (but not knowingly) assisting a terrorist group by giving a used SIM card from a mobile phone in mid-2006 to one of his second cousins in the UK. Haneef, who was employed on a work visa at a Gold Coast hospital, told police he was leaving the UK and his cousin wanted the unused credit on the card.

The Australian Federal Police (AFP) now admits that, contrary to the claim the prosecution put to the court, the SIM card was not in a jeep used in a failed attack on Glasgow airport on 30 June this year. An official transcript clearly contradicts other purported facts in an AFP statement tendered to the court about what Haneef told police when interviewed after his arrest. But the AFP refuses to say if it will inform the court about these errors, or reveal when it first knew that the information about the SIM card was false.

A spokesperson for Andrews says there is no need for him to review his decision to lock Haneef up, because he acted on advice from the AFP which contained other information. It is understood that a classified annex contains information from the British police about their reasons for suspecting that two of Haneef’s cousins in the UK may be involved in terrorist activities, or at least have knowledge of such activities. Apparently, the annex does not contain any new material clearly incriminating Haneef in the provision of assistance to a terrorist group. However, all the law requires Andrews to decide is that Haneef is of bad character because he has associated with people reasonably suspected of criminal behavior.

The only reason the young Indian doctor is currently incarcerated in an immigration centre, perhaps for several years until his trial is completed, is that he opted to stay in a Queensland jail rather than post the relatively low $10,000 for bail set by a Brisbane magistrate.

Politicians should not put people in jailThe use of this extraordinary ministerial prerogative is not unique to the Haneef case. But it is normally exercised after someone has been convicted, not when a trial has just begun. Astonishingly, John Howard was still insisting as recently as Monday that his government had no role in the whole affair, despite the fact that a member of his cabinet had clearly overturned a court ruling on bail.

The ministerial prerogative exercised by Andrews should not exist. If we are to pay more than lip service to principles that can be traced back 800 years to the Magna Carta, executive governments must not exercise judicial powers. Only courts should be allowed to imprison people for more than few days.

The law should be changed so ministers can’t jail people. A possible exception is if someone spends a night in a detention centre before being deported. Even so, the decision to deport should be taken by an independent tribunal, not a politician who can be construed as having a political motive to appear tough on terrorism.

Changing this law may be easier than ridding sections of the AFP, the prosecuting authorities and the Attorney Generals department of a dangerous mix of incompetence and zealotry whenever the slightest prospect arises of nailing a terrorist. The ability to reason from established facts, to follow the rules of elementary logic, and to accept innocent explanations for perfectly normal behaviour, seems to vanish when the word 'terrorism' is uttered.

There is no excuse for the errors now revealed in the police statement to the court, or in the prosecutor’s false claim that Haneef’s SIM card was present at the scene of terrorist act. In each case, it was easy to check where the truth lay.

These initial mistakes were compounded by a report in the latest edition of Brisbane’s Sunday Mail that police now suspect that Haneef was part of a plot to blow up the largest building on the Gold Coast and symbolically leave Australia on September 11. Initially, the AFP refused to confirm or deny this report. After the Queensland premier, Peter Beattie angrily demand an explanation in view of the assurances he had been given in briefings that there was no threat anyone on the Gold Coast, the AFP Commissioner, Mick Keelty, said the report was wrong. He also that the AFP was not the source. If so, the source would appear to be someone else at an official level who was happy to release false information designed to damage Haneef and alarm Queenslanders. As far as is known, there is no investigation underway to identify the source.

Shortly after Haneef was charged on 14 July, Keelty, held a media conference where he assured the public that the investigation, 'has been driven by the evidence and driven by the facts'. Although hundreds of police were assigned to the investigation, this claim is demonstrably hollow. But no one in the federal government, or opposition, has expressed any concern that the over-eager behaviour of the police, prosecutors and ministers risks further radicalising Islamic youth.

Terrorism involves the ancient crime of murder. Haneef is not charged with murdering anyone, attempting to murder anyone, failing to tell the police about a planned murder, or knowingly assisting anyone to commit murder. If ministers and officials don’t want to encourage the recruitment of more terrorists, they should take far more care to ensure that a charge of unknowingly assisting a terrorist group is only laid on the basis of clearly established facts.

Brian TooheyBrian Toohey is a columnist and feature writer for The Australian Financial Review, and columnist for The West Australian and The Canberra Times.



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Existing comments

I believe Dr Haneef’s case of proceeding with criminal charges without sufficient evidence has not been a result of mistake or overreaction. The latest evidence allows a possibility of conspiracy behind this. Yet, it is only one manifestation of a deep and serious problem. In Queensland, Vincent Berg’s and some other cases are not less alarming.
It seems that the rule of law based on legal evidence and respect to individual human rights is in danger of being replaced by witch-hunting. This problem must be addressed in principle and not only in Dr Haneef’s case. Every such case should be reviewed against strict and clearly determined criteria of legal evidence sufficiency allowing to proceed with criminal charges.

Andreas Berg | 16 January 2008  

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