Paul Kelly: Lawyers hate democracy (just like Islamists)

Still sick, time on hands, I’ve just read Paul Kelly’s 2007-07-21 Murdoch special "At war over the law" where Kelly portrays silks and the judiciary as lifelong neo-Trotskyite Howard-hating fools fighting and losing a pointless war against democracy.

For one, I’d have put a capital "L" in "Law", as this would better describe the true object of the fight.

THE political war between much of the legal profession and the Howard Government is now open and unconcealed as barristers and the bench resort to leaking, lecturing and campaigning against the executive and the parliament.

No, just the way the executive has been behaving.

This is a deadly contest, fuelled over many years but growing more bitter over the anti-terrorist security laws.  It is a war the legal profession is destined to lose because of its flawed intellectual position, its engulfing hubris and the ultimate reluctance of the Australian people to accept the legal polemic about the threat to our democracy.

No Paul, the intellectual position of the legal profession is pretty watertight, and I’d love to see you in a public formal debate against one of the former justices you mention on such issues.  Mind you, there’s some truth to the "ultimate reluctance of the Australian people" to think, as you’ll see in my recent snippets from Mal Fraser and David Marr (OK, one of those two is a lefty).

The bedrock view of the lawyers’ rebellion is their refusal to accept the legitimacy of executive action based on statute and invoking the national interest.

Not the legitimacy, but the way statutes have been sneaked through by gutting parliamentary review.  The "national interest" debate has not occurred on the issues of the core values and advantages of the democratic system we thought we had, and that the executive pretends to value when promoting civics courses or the content of citizenship tests.  (Read this for my take on the irony.)

Lest anybody suspect Richter was in a minority, Australian Bar Association president Stephen Estcourt branded the cancellation of Haneef’s visa “a cynical exercise” that “constitutes an assault on the rule of law”.  That’s all.  This paper quoted Estcourt as saying that “disquiet is pretty universal” among lawyers. He was reported saying that thousands of lawyers were deeply concerned about the Howard Government’s actions.

Well, the legal profession have always been democracy-hating socialists who never vote conservative.  Yes, that tone was sarcasm.  Seriously though, what has made the bulk of the legal profession, (most of whom would have voted Liberal in 1996) turn against the regime?  Has this conservative bunch been smoking pot and taking to dying their wigs in psychedelic hues?

There is no reason to doubt such extraordinary claims. The lawyers are mobilising against executive tyranny.

Yes, Paul, they are.  But you won’t muse on why.

Yet, there are a couple of points you do make that are completely valid.

The message is that the executive-judiciary struggle is entrenched beyond party politics.  It will endure under a Labor government but without the special venom that marks the profession’s attitude towards Howard and Attorney-General Ruddock.  Indeed, it may be some time before the legal lions liken Kevin Rudd’s government to terrorists.  But it will happen.

In my opinion, the ALP’s silence on these issues is either because of lack of spine, or principles, and the lawyers and judiciary have had to pick up the burden of being the "Loyal Opposition".  Maybe the ALP likes the idea of all that extra precedent Howard is giving them for unconstrained power.

Kelly also forgets that lawyers have a much better understanding of political philosophy and the role of different powers (as well as a critical free press, Paul) than most politicians.  My sole philosophy unit was the one law students had to take, and included moral and political philosophy, dealing with such questions as "what gives a state the right to make laws about something and inflict what sort of penalties".

The Government’s main problem has been incompetence feeding declining public trust.

Yes.  Competent liars, competent muzzlers of freedom remain trusted by the public, even past the point where trust is no longer required, fear being sufficient.

Tell me Paul, should the legal profession have objected to laws passed by any parliaments and their democratically elected leaders in the past century?  A few lawyers in Caulfield and Elsternwick might be able to help you out there.  Just look for the ones with names ending in "mann" or "vitz".  But, as a long-time highly-placed Murdoch employee, perhaps you are inured to tyrants.

I cannot think of a time in human history where the legal profession has been inflamed against rulers without something being very wrong with the running of the state.  That should have been the subject of your piece.