I have been involved a lot in speaking with lawyers (tomorrow for example I have another City Legal breakfast and lunch). Partly as a result of this I have been thinking a lot more about how important having a good legal system is to the good of us all. That plus the goings on in Scotland (I am currently reading a worrying book about law in Scotland and how it is being undermined by the Scottish government). Anyway here are some of my reflections in this weeks AP article…
One of the fundamentals of Western Liberal democracies is the rule of law, and equality of all before the law. This is not just some academic debate, but at the very heart of what it is to be a civilised society. I speak a great deal to groups of lawyers, and it is clear that whilst some appreciate the Christian foundations of the Australian (and Western) legal system, others seem unaware of the great threat that that system is now under. Equality before the law and justice is under threat as never before.
This is happening because of a number of factors, including the politicisation of the judiciary and the removal of investigations from independent judiciaries to dependent academic ones. If the judiciary is weak then we will find ourselves in a situation where a citizen’s fundamental rights and freedoms are threatened – as numerous other countries have shown. For example, in Stalin’s Russia it was known as ‘telephone justice’, where all Stalin had to do was pick up a phone to ensure that the ‘right’ result was achieved. In other words, the king is the law, not the law is king. Samuel Rutherford, the Scottish Covenanter, wrote a highly influential book entitled, “Lex Rex”, where he argued against the divine right of kings and the idea of Louis XIV “L’Etat, c’est moi’ (the State – that’s me).
As we move away from our Christian roots, we are also in danger of losing the fruits – not least the idea of justice for all. Take for example the recent case of Christian Porter, the Attorney General. The basic facts are now well known. He has been accused by the ABC and various other media of having committed a serious sexual offence when he was a teenage boy. This has been done on the basis of a letter sent from friends of the alleged victim, who has since died. The woman had advised NSW police that she no longer wished to continue with the allegations and the police decided that there was not sufficient evidence. But this has not stopped the media witch-hunt or the mob and excitable politicians looking for a political scalp, from demanding an ‘independent’ inquiry into the allegations. Mr Porter has since taken his own recourse to law and is suing the ABC for defamation.
What is wrong with all this? And why should we be concerned? Surely the issue of sexual abuse and rape is serious and should be taken seriously – even when historical? Of course. Our confused society may glorify in 50 shades type pornography, speaking of consent whilst glorifying sexual perversity, but we as Christians, should of all people be opposed to sexual violence. We have a higher, not a lower, standard. But that is not the primary issue here. The issue is not whether rape is serious, but rather whether the allegations of rape are true.
Trial by Media
There are two aspects that should concern us. First of all is trial by media. Listening to the ABC it was clear that the impression it wanted to give was that there was a case to answer – despite what the police said. It could only be described as ‘trial by media’ through partisan reporting on ABC news, ABC National and the Four Corners programme. I was shocked to discover from other sources that the letter itself questioned the reliability of the accusations and pointed out that the woman’s parents “worried that she may have confected or embellished the allegations due to her mental illness”. Why would the journalists not report this? Were they acting as not just the prosecution but also judge and jury?
Trial by the Mob
Secondly there is trial by the mob. I witnessed people online and on demonstrations bearing signs stating that Porter was guilty and should be removed. None of the people who bore those signs could justify or prove that – they just felt it. It was what they believed. Just as no one can say with absolute certainty that he was innocent. But that is the point. Our legal system operates under the basis of presumption of innocence, not presumption of guilt.
It appears that the media and the mob now operate on a different basis – you are guilty until proven innocent (and even then, like good conspiracy theorists, they would regard any declaration of innocence just as part of the conspiracy). The presumption of innocence requires a high standard of proof to find someone guilty. That means that sometimes those who are guilty will ‘get away with it’, because the proof is not there. That is a horrendous fact, only mitigated by the fact that ultimately no one gets away with it, because one day we will all have to stand before the Supreme Judge, to answer for the deeds done in the body.
Whilst the presumption of innocence means that there are some who will, at least temporarily, get away with their crimes, the alternative is worse. The presumption of guilt, trial by media and trial by mob, the replacement of facts with feelings (I just feel he is guilty), will result in many innocent people being declared guilty and suffering unjust punishment. It will mean one law for the powerful and rich, and another for those who fall foul of the elites. If anyone’s career can be brought down by an allegation without proof, then, as in Stalinist Russia, no one is safe.
Scotland’s Example…
In Scotland this week we have seen where this leads. On the one hand an ‘independent’ inquiry set up by the Scottish government has declared that the First Minister, Nicola Sturgeon, is not guilty of misleading parliament. On the other a committee of the Scottish parliament has declared that she was. How can both be right? The trouble is that the reports have been so limited by the limitation of evidence, and redactions, that the whole picture has not come out – leaving the politicians and media free to make their own choice, according to their own political biases. This is not justice. This is not the rule of law.
Scotland is moving towards a system where political control of, and influence over, the judiciary will result in a legal system which favours only those in power. Equality before the law will disappear. Australia is in enormous danger of following the same route. A senior Scottish judge once told me that it was the job of the judiciary to keep up with public opinion. That is a horrendous notion of law. Judgment by whatever the media or politicians tell you ‘the people’ want becomes the end of justice. But the law should be without fear or favour.
The Basis of Law
The justice system that has evolved in the West has been based upon the presumption of innocence, the necessity of proof (including witnesses), equality before the law, and the belief that justice in this world will sometimes be flawed and is at best only temporary, but that there is a judgement day – when all our judgements ‘will be judged with justice by the man God has appointed” (Acts 17:31) and the books opened. Remove these and you remove justice. Ironically our ‘social justice warriors’ are ensuring the destruction of the justice they say they are seeking.
As Christians let us avoid trial by media or mob (especially when they agree with our own prejudgements) and let us learn instead to uphold the rule of law, seek justice for all, and entrust ourselves to the law and judgement of God. We need also to remember that at a personal level we all fall short, and are all guilty of breaking that Law, and we are all in need of the mercy seat, not the judgement. Our righteousness cannot be our own, it can only be Christ’s.
Law, Education and Religion – A Response
What is the Christian View of Sex Education and Consent – AP
Journalists and social media have far too much influence and far too little accountability. We now live in a society in which the media create truth rather than simply report it. When there’s no transcendent standard to which everyone can be held, even democracies can’t rise above mob rule.
In New Zealand the law professors at the university are attempting to convince the law makers in parliament to remake the law to include tikanga Maori or Maori way of doing things including Maori language and religion. Soon, if nothing stops it we will also be like Stalin’s Russia. But what can you expect with a radical socialist government?
Thank you for this thoughtful piece raising a profoundly important and neglected issue.
The presumption of innocence has been slowly compromised for some time. Employment law is an example where those against whom there is a complaint are required to prove their innocence and not have their alleged guilt or transgressions proved.
The BBC and other media outlets often omit the word ‘alleged’ when referring to sex crimes such as rape, or referring to those who make such allegations as victims and not alleged victims.
We hear the police talk about the need for those making such allegations to know they will be believed. They should neither be believed or disbelieved but the evidence looked at with maximum diligence and dispassionately and followed wherever it leads. The alleged victim and the accused should have confidence that the police and judicial system operates in a fair, truthful and professional manner.
“Equality of all… the king is the law, not the law is king.”
Correct me if I am wrong David but wasn’t the finding of the inquiry that there was a nuanced outcome, that Nichola Sturgeon is not guilty of intentionally misleading parliament and therefore it not being unministerial and requiring her resignation? Also her having apologised to the two women that were let down and to the taxpayer for £ 1/2 million of funds used in the legal process. That would make it consistent with the Scottish Parliament committee declaring that she was guilty of misleading parliament. The devil is in the detail. I think the main point to be taken from this is that neither her or her critics that were calling for her resignation before the result of the inquiry had been revealed have come out looking good from it.
So yes you are right to be concerned about Scotland moving towards a system with political control and influence over the judiciary favouring those in power. So if you have enough money and power and / or powerful friends to throw at a legal process and write off if you lose then you stand a chance of justice when you have been wronged. Whereas if not, suck it up. Thankfully God favours the oppressed whatever any legal system does; with truth and justice prevailing sooner or later and so there is hope.
So, there’s nothing new under the sun. King Herod had John’s head on a platter because his wife didn’t like what he has said. Teachers of the Jewish Law were hypocrites creating burdens for people that were too heavy to carry then not lifting a finger to help them, preferring to be seated in high places and greeted in the marketplace than administering the Law in the spirit with which it was intended.
There’s nothing new under the sun – nothing to see that is surprising here.
And so moving on… all have fallen short and Christ knows what it is like to be falsely accused. So if we suffer then Christ is suffering with us and what my little mind can’t take in is that and also all the resources that God has become available to us if we focus fist on the kingdom such that all out needs be met so there is no need to worry. The joy of the Lord is your strength – it’s the good news of the gospel of the Lord Jesus Christ.
The light shines brightest when all around is at its darkest. People need to change the way they think about things to get it.
“… pointed out that the woman’s parents “worried that she may have confected or embellished the allegations due to her mental illness”. ”
Yes, I’ve only heard that mentionedonce in the news media’s reporting of the issue.
In the news this afternoon, I heard ScoMo is going to reshuffle Cabinet to remove Christian Porter from the Attorney-General’s role, so it looks like the trial by media has claimed his scalp.
If it is the “job of the judiciary to keep up with public opinion” – then we all need to work harder to make sure the voice of reason is heard or rather the ‘voices’ of reason. I used to think when it came to accusations against men that “there’s no smoke without fire”. Not anymore. We are justifiably angry when we hear of sex crimes committed against women – by men. But I have to say I am equally angered by women who will falsely accuse or exaggerate. In order to protect the accuser (or the violated woman in true cases) – they have anonymity. We need equality! Men need the same anonymity when accused – because the accusation hangs over them for their entire lives because people think “no smoke without fire”. What about the penalty for false accusations? Understandably a minefield – as it would be unthinkable to punish a woman who was telling the truth but the case was unproven or the accused exonerated (although guilty). So at the very least – anonymity for the accused man should be granted until proven guilty.
Another aspect of equality is the issue of male victims of sex crimes by women. I once thought this was basically non-existent. It is underreported and is not as uncommon as we think. I know of 2 cases, one where an underage boy was sexually abused and coerced by his mother – and I was shocked because I thought ‘women don’t do these things” The second was older women coercing a younger male. These are cases I know of personally – not ones I read in the paper or on google. We know how women feel with unwanted sexual attention – they feel violated, broken, used, dirty, damaged goods, unable to trust. But we don’t generally know how men feel as the recipients of unwanted sexual attention, coercion, sexual abuse or rape – (by both men and women and yes we have a hard time believing women sometimes rape men but it happens – I think more often where there’s alcohol or drugs involved but I don’t know much about it). Men don’t tell us how they feel about being the victims – at least it is not common knowledge. I agree that women are more vulnerable to sexual abuse or rape than men are – and to not be believed on top of that is soul-destroying – but women are capable of being predators too. It is a fact that men are more vulnerable when it comes to false accusations – their lives completely ruined.
I recently saw a headline – that Gerard Depardieu the French actor is accused of a historic sexual violation. I realized my attitude had changed when I thought “nah, this could be a juicy media story, an exaggeration, a lie or any number of things”. Of course it could be true, but I am never again going to look at anyone through the ‘no smoke without fire’ lens – especially knowing what the media are like.
At the end of the day – whatever injustices any of us go through – the important thing is to have a network of support.
We use the phrase “men will be men” – what does that mean? What would it mean if a man said “women will be women”?
David,
As we know the so called ‘Law’ is never black nor white…A leading Scottish lawyer whom I was engaging on a defamation case (Libel or verbal Slander rest of UK) explained that the law is actually 100 shades of grey, being twice the number of that of the EL James books (which I have not read) … Of course I would win the case, however it would cost 10x the legal / court fees, vis a vis, my award…A phyrric victory, or however it is spelt..! Pointless case to win, in other words.
The ‘Law’ as determined by statute is mostly ‘nuts’ , 80% being non-sensical according to the well known Pareto law, rules or analysis.., and only 20% being common sense or reasonable..!
Goodness knows (Well God does..!) when the Nuts Laws will be repealed and sense and sensibility will prevail and the sound of the tribes, the mob, and those who shout the loudest will disappear in favour of what is reasonable, true, fair and just ..!
In the meantime, here in Scotland we have to hope and pray when the end of the shelf life of the current snp administration will end, and take their stupid nonsense laws with them into the pits..!
It’s remarkable. People question the validity and authority of the bible, and the testimonies of those who have put the content in to action, stating this is insufficient evidence to follow or believe such matters!
But the same public will call for people to be sacked on 5th hand gossip!
God is not mocked. He will judge those who say they cannot believe, against situations in which they have believed. I.e. they have exercised faith in man, but reject faith in God.
Law in Scotland has not been the same since an Edinburgh advocate attempted to mitigate sentence upon a death penalty headed, political dissenter in a final appearance before the fearsome Lord Justice Clerk , Lord Braxfield , thus :
” My client is a Dissenter , but do please, M’Lud, remember that our Lord Jesus was also a Dissenter .”
” Aye weel, ye ken what happened to Him.”
Interesting article David. What, pray, is the title of the book you are reading on troubled Scotland and it’s legal system?
Ian Mitchell – The Justice Factory (2nd edition).
I have not followed the Porter case but for the last year have delved deep in the Salmond one.
Unfortunately Sturgeon did not follow Salmond’s example and separate the Lord Advocate’s role as both head of prosecutions and member of cabinet responsible for their legal advice. It might not be a problem for an upright appointee but I think the evidence shows the room for horrible corruption. I’m quite depressed at hearing Craig Murray being faced with two years in prison with selective prosecuting.
Salmond’s reputation is in tatters and I’m afraid that was the point. Woman H in the criminal trial who was proven not to be in the place she claims the rape took place admitted under oath the allegations were there to be a ‘vetting issue’. The more charges the more it looks like he was guilty of something! Almost all were in public with multiple witnesses saying they were not true, hence why a women dominated jury found him not guilty on almost all charges. The only complaint of any credibility was woman A in the original inquiry. The incident in question had already been dealt with years ago in the party with an apology and an offer to be relocated in another government apartment. The offer was declined and apology accepted.
What the Fabiani inquiry found was that both the two women and Alex Salmond were both unfairly treated.