Imprudent Jurisprudence

So Gordon bottled it at home, "if only I could wait until 2010!" thinks John Howard. Another week, another refusal to name an election date. And as Johnny is planning to go to Tonga next week it seems unlikely we'll get one then either. The penicious rodent is even more fearful and piss-weak than I had thought. His nervous little arsehole must be pumping like Tim Henman's fist. How long is he going to push this waiting period? How long will government-funded propaganda clog our screens in a desperate grab for votes before the official electioneering begins? Well it now seems that Howard will wait as long as he credibly can (which is not much longer) in the hope that Kevin Rudd will provide the mistake that allows the government and the shrill hyenas of right-wing TV news to pull him to shreds. And it seems as though this morning he may have found something to get his teeth into.

With the Bali bombers seemingly about to face execution Labor's Foreign Affairs spokesman Robert McLelland last night reaffirmed the Party's (and also officially the Nation's) opposition to capital punishment in all cases. He also accused John Howard of being a hypocrite for ostensibly promoting Australia's stance against capital punishment whilst personally endorsing it in certain cases. Fair point, after all this is not the kind of issue that can have a selective application. If a government is against the death penalty, then it is against it. If it is in favour of the death penalty 'in certain cases' then it is in favour of it. It is a black and white issue. Not so for John Howard though, who seized the chance to smash down McLelland's logical argument with a populist sledgehammer.

Speaking today Howard described McLelland's opinion as "extraordinary" before adding (and bear in mind that the Australian Government, his Government, has consistently and officially stated its opposition to capital punishment)

"The idea that we would plead for the deferral of executions of people who murdered 88 Australians is distasteful to the entire community. I find it impossible myself, as an Australian, as Prime Minister, as an individual, to argue that those executions should not take place when they have murdered my fellow countrymen and women."

And there we have it, a masterful example of Mr Howard's sophistry, his spineless opportunism and shameless abuse of power. It's all there, the Nationalism, the populism, the cheap sentimentality all tied up in a neat little soundbite. Labor, with its cold rationality doesn't understand the man on the street, not like dependable old Johnny, who says what we're all thinking. This goes to the core of Howard's "leadership" style. Rather than have the guts to act like a true statesman and defend a momentarily unpopular, but nevertheless essential Australian principle of justice, he takes the tone of a deranged radio talk show caller and scores cheap political points. Howard's opinion that he cannot oppose the execution of those who "murdered his fellow countrymen" as he so emotively puts it, has difficult implications. What if an Australian citizen were to murder 88 Australians in Bali, or say 8000. Would he support their execution? And say they did it not in Bali but Brisbane, would his government have them executed? And if not how can he then justify a selective application of the anti-death penalty policy?

These are the types of questions that those who make and implement laws are forced to ask and angry talk show callers are not. That is why Judges with extensive legal training are responsible for sentencing and not electricians with ideas on "what this country needs". They are also the types of questions one would expect a Prime Minister with a law degree to consider before attacking a rational argument as 'insensitive'. But alas no.

Of course McLelland's opinions might appear insensitive, because the law can appear insensitive. By its very nature it stays cold and unmoved, refusing to bend to the whims of pubic emotion. Its objectivity (to give 'insensitivity' another name) is its core feature, it is what prevents the administration of justice descending into mob rule. The families of the victims are furious with McLelland, and it's not hard to imagine why. However, this doesn't justify taking the voices of the grieving as the most valid in questions of legality, simply because they have suffered. If a child was killed in a drink driving incident and the father demanded a horse whipping for the driver would we yield to it on account of the strength of his grief? The opinions of the victims and their families are skewed and we mustn't mix sympathy with righteousness. One angry parent, who previously was against the death penalty went so far as to admit that "In these circumstances, I agree with it. Realistically, for me, it is just vengeance and vengeance isn't good, but I can't help that, I can't help that." We should be able to understand this without endorsing it.

The pain of the families must be unbearable, but a good leader has to occasionally take unpopular stances in order to defend high principle. Howard chooses not to defend such principles (on which his precious "Australian values" are built) and instead takes the easy vote-winning option and to hell with consequences. He has neither the balls to defend his own policy, nor to suggest changing it. He simply trots out puerile have-your-cake-and-eat-it aphorisms to grab headlines and attacks those who are willing to defend legal procedure and the objective application of justice as elitist and insensitive. It is rule by the heart and not the head, the very thing legal thinkers from Plato onwards have identified as bad which a good legal system is supposed to defend against.

The saddest thing is that the alternative Prime Minister Rudd has joined in too, forcing McLelland to retract his perfectly sensible statement and issuing one of his own assuring voters that Labor's policy is "exactly the same as the Liberals'" i.e. the same as McLelland's speech only Rudd and Howard aren't brave enough to say so. Just to show that it's not only Howard who can do tough-talking meaningless rhetoric Rudd also said that terrorists should "rot in jail". What does that even mean? Is he advocating starving them and sitting them in their own filth and disease on the verge of malnutrition? I doubt even Kevin knows what it means, it is a piece of populist tabloidesque gibberish of the type his opponent has perfected and which he is fast becoming fluent in.

I doubt this minor scandal will be a mortal blow for Rudd's electoral chances, but it might have just killed off the chance of having a Prime Minister of principle in Australia for at least a generation.