Hicks trial 'an abuse of law'
August 4, 2005 - 9:21AM
Former High Court judge Mary Gaudron believes the trial process faced by Australian terror suspect David Hicks in the United States is an abuse of the rule of law.
Military commissions have been set up by the US to try detainees of the US facility at Guantanamo Bay.
Hicks, formerly of Adelaide, has been in detention for nearly four years.
It has been revealed that three US military commission persecutors have resigned over concerns the commissions process is flawed and the outcomes rigged.
Ms Gaudron, who retired from the High Court in 2003, said the process conflicted with the nature of Western society.
"(Prime Minister John) Howard says that (Hicks) is dangerous but I don't know that he's dangerous," she told ABC radio today.
"It's clear that he has not committed an offence under American law, or he would have been dealt with in American courts with American law.
"The rule of law, normal civilised behaviour, says you are not deprived of your liberty, you are not exposed to punishment, if you haven't broken the law.
"That's the very essence of a civilised, free, democratic country."
Mr Howard yesterday continued to defend the process after more concerns were raised in Australia over the process and after legal opinions that Hicks could be tried at home.
"I am satisfied that the military commission process will provide a fair trial for David Hicks," he told reporters.
Mr Howard and his senior ministers have said Hicks has not committed any crime under Australian law and cannot stand trial here.
Opponents of the process say Hicks should be tried in a civil court.
Ms Gaudron said that because Hicks faced a military inquiry rather than a proper legal trial "he's not being tried in any ordinary sense of the word".
"He is being subject to a military inquiry, the rules of which are anything but consistent with the notion of a fair trial in respect of a criminal offence.
"If David Hicks committed a criminal offence anywhere in the world, then the rule of law requires that he be tried in a proper court composed of independent judges whereby his criminal guilt can be ascertained."
Ms Gaudron accepted that the US military process was legal in that it followed a presidential decree.
"It follows a presidential decree which of course is the hallmark by which people are tried in some countries that we would regard as a dictatorship," she said.
"It's legal in the sense that there is a decree but it is an extra-legal, extra-judicial process.
"Whether or not it is consistent with international law and norms is another question entirely."
AAP
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