The rule of law has always been as core of the Australian legal system. It is used as” a primary means of subjecting governmental power to control” (92). In Australia, the judicial process is characterized by the application of universal and abstract criteria based on the principle that all citizens are equal before the law. Even though a juridical interpretation of the law admits a range of possible resolutions, the criteria which characterize judicial proceedings limit the space in which actors in conflict may negotiate and exchange political costs and benefits. The rule of law was introduced by a colonial Chief Justice and than asserted by V. Dicey.
In some cases, the institutional limitations may in fact tie the hands of a democratic government seeking to redress past wrongs, but they do so only within the rule of law. In Australia, the rule of laws is enforced by courts. The Constitution also assumes the rule of law in the case Australian Communist Party v Commonwealth (Wade and Bradley 62). Since due process and fair-trial guarantees should be an absolute condition of legitimacy in any accountability scheme, it makes no legal, moral, or political sense to insist on prosecution in the presence of amnesties that have obtained legal effect despite their immorality. Accepting such reasoning would violate the cardinal rule of nullum crimen nulla poena sine lege (no crime no punishment without a previous penal law), in the sense that defendants always have the right to the most benevolent law that can be applied to them after the commission of a crime.
This does not mean that the effects of these proceedings are neutral, for a law generates differential costs among diverse social groups. Still, laws reorganize the form of conflict resolution, redefining the cost/benefit matrix determining the probability that each of the diverse social groups involved will realize their interests. In Australia, “statutes are sometimes retrospective and this is not necessarily wrong or unjust- Statutes are sometimes passed to deal with invalidity and uncertainty in the law. Such statutes are retrospective in operation but not necessarily objectionable” (Wade and Bradley 73).
Even though a law does not have a particular or concrete beneficiary — that is, even though it does not constitute a selective threat-it can establish the magnitude and universality of the costs that will confront those who decide to violate it. The Australian justice system recognizes presumption of innocence and double jeopardy rule, legal equality and habeas corpus rule. Thus, the foundations of rule establish that all criminals should be brought to justice, particularly when they have followed an authoritarian strategy and when their crimes have been massive. Without an autonomous judiciary willing to defy the political strategies of the presidency, as well as without political parties and human rights organizations willing to face the risk of the rule of law, military subordination to constitutional rule would probably not have come about. Similarly, the due obedience law constitutes a de facto amnesty that violates the right to justice of the victims and their relatives (Wade and Bradley 100). The democratic record in much of the world has been either weak or simply bad when it comes to judging the crimes of the guardians. That is, individuals should only be held accountable to laws that were in effect at the time they acted. The issue of the rule of law is not whether justice should be pursued but rather how it is to be sought.
Works Cited
Wade, E.C.S., Bradley, A.W. General Principles of Constitutional Law – Chapter 6. pp. 91-104.