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sydney alternative media - non-profit community independent trustworthy
Monday, 15 January 2007
The Bilal Skaf 55 year sentence for gang rape by Justice Michael Finane
Mood:  quizzical
Topic: peace

 By Tom McLoughlin, solicitor in NSW

When I studied the subject of Jurisprudence in 1989 at Australian National University which I greatly enjoyed, we were taught there is an institutional conspiracy in the administration of justice around the choice of judges.

That is the judges are chosen from a fairly limited group of society, who had a certain socio economic childhood, education, religious training, ethnicity, career as a lawyer and then choice as a judge.

This is the realist theory of the law, as a social contract we all sign up to to live here, where morality is not nearly as significant as maintaining order, because disorder creates confusion and that leads to conflict and social breakdown. So the law is more about keeping the peace than actually doing justice.

[Notice too the legalistic objective of keeping the peace is only one social good. If law is too strict it stifles creativity, freedom of expression, and innovation. Too much 'legalistic order' can be not only boring, it can be unhealthy to civil liberty and so fascist. As always it's a balancing act for society as a whole.]

Similarly there is a jurisprudential academic view this background influence reflects the approach of judges to court decisions on any particular matter.

In a way this is common sense, and blatantly obvious. A judge is affected by their own background personal experience. But this has to be applied professionally according to the evidence in a case and the actual law. So much for the human condition.

One presumes Judge Michael Finane is such an orthodox judicial officer.

Indeed this writer has met him socially on one occassion at his home long before these controversial cases and some of his family around the topic of permaculture gardening. This puts this writer in a delicate position. One is able properly to comment on legal decisions but not hold judges in contempt by suggesting they take note of anything in their decisions other than the evidence before them. For instance their family background should not be a factor beyond what is known as "judicial facts", that is commonly known things that everyone accepts without evidence - say the sun comes up and sets, the harbour bridge is big etc. They have to be common blatant things beyond controversy. Perhaps. Does it includes a father's concern for the well being of his own?

So from a legal theory point of view I wish to comment on the fairly widespread view amongst some critics of the 55 year very long sentence of Skaf by Finane that discrimination might be involved. No. Simply I don't believe it and here is why:

There is one thing in common between Finane and critic Mufti Hilali - they are both fathers of adult children. My intuitive belief is that subliminally or subconsciously Finane must have been influenced by this reality of his own family. Similarly if any of Hilali's daughters had been violently abused he would probably be quoting the Koran or Old Testament dictum of capital punishment, rather than 55 years.

There might be quite a few women's groups with sympathy for that too, as victims of violent sexual abuse, though the law is properly not in the business of revenge. 

So I don't buy the theory about Finane prejudice against Islam in his harsh punishment. No, I think it's an explanation around evidence and law, training and yes his own family, far closer to Hilali's own life journey perhaps than the Mufti actually realises. Not the evil of discrimination but the positive motive of a family man.

It is regretable to mention a judge's family in analysing his decision but there wouldn't be a good defence lawyer in the whole country who didn't make similar calculations of the presiding judicial officer in a case. What's he like? How many sugars in his coffee and every other personal detail. So it is with Finane and that's the burden too of a judge's family.

I write this in what I believe to be the public interest, and a small risk to my own practising certificate, as there is a gathering momentum behind the 'discrimination against Islam' theory of Skaf's sentence which calls up the need for credible alternative versions of reality of which a father's natural concerns for their own surely plays a part while properly exercising a public duty.

Posted by editor at 8:44 AM EADT
Updated: Tuesday, 16 January 2007 10:33 PM EADT

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