JUDGING THE JUDGES

WHAT'S ALL THE FUSS MR. ANDREW BOLT?

I'm must admit to being a little surprised by Andrew Bolt's (Herald Sun) 14 June) response to Attorney-General Rob Hulls' campaign to 'educate' members of the judiciary. That Hulls is trying to ride the law and order wave in the months before the state election is palpably obvious. And although one could be forgiven for suggesting that it helps to be a 'mate' of the government when an appointment is pending, I see no need to protect judges from scrutiny.

Judicial independence should not be an impediment to lawmakers, intent on forcing judges to respect the human rights of a victim. Nor should it mean judges can't and shouldn't be criticised for antiquated views. Rather than quibble about the possibility of activist judges flooding the benches, we should be railing against a legal system that has so often failed the innocent.

Instead of worrying about some fictitious 'imam preaching jihad against us infidels' Andrew should be campaigning against old-fashioned judges. Instead of scoffing at the prospect of judges being encouraged to meet female victims of violence he should be asking why so much violence against women goes unreported and why it took so long to abolish the barbaric provocation law.
Violence against women and the way the courts have dealt with it is a national scandal. For years, women, essentially by way of the law of provocation, have been blamed for the violence inflicted on them. For years they've been treated as liars when they've claimed to be raped.

The great irony is that the cultural defences about which Andrew writes are not something the Attorney-General has to dream up. Nor do I think Rob Hulls would dare go down that path. It's judges, some very conservative, who have affirmed a violent man's right to a cultural defence. The Appeal Court decision to quash a murder conviction in R v Yasso, in 2004 is an example. Although Mazin Yasso isn't a Muslim, he is a Chaldean Iraqi whose cultural background, said Justice Charles, warranted the granting of a provocation defence. This was despite Yasso breaking an intervention order and stabbing his estranged wife, Eman Hermiz, to death in broad daylight in Meadow Heights.

Justice Charles argued that 'In Chaldean tradition the wife's marital infidelity is a source of strong, social disapproval not only for the wife but for the husband with the potential to result in a lifelong smear upon the husband who is considered responsible for the acts of his wife...' before ordering a retrial. Although there was no real evidence of an affair and the dead girl's family vehemently denied it, the judge still believed Yasso was entitled to a defense of provocation. If this is the kind of 'cultural defense' Andrew Bolt would outlaw, I'm with him.

The community has every right to expect judges to uphold the values of a civilised society. So should it expect the Attorney-General to condemn laws that allow such cultural defenses. I am implacably opposed to the ruling handed down by Justice Charles and would do everything I could, if I was a lawmaker, to ensure it never happens again.

Eman Hermiz had every right to leave Mazin Yasso and should not only have expected she would be protected by the intervention order, but that the society would affirm her right to leave. Yet this young woman, standing a little over five feet tall, was stabbed more than twenty times and, in the appeal court, seen to have acted in a way that might have provoked Yasso to kill her. Fortunately, a jury of ordinary Australians twice found Yasso guilty of murder.

I could cite cases till the cows come home, that illustrate the need for judicial and legal reform. Again I'm surprised Andrew Bolt hasn't cited R v Dincer, when writing about so called cultural defenses. In 1982 Kemalettin Dincer was granted a provocation defense after stabbing his teenage daughter to death. Justice Lush accepted the defense argument that as a devout Turkish Muslim Dincer was likely to be shamed by his daughter's allegedly sexual relationship with a boyfriend. Dincer was found not guilty of murder, due to provocation, and sentenced to four years gaol.

From the moment my sister's murderer was granted a defense of provocation and found guilty only of manslaughter in 1989 I was convinced of the need for judicial reform. I'm not interested in populist law and order campaigns run by vote grabbing politicians. Nor do I think sentencing is the problem some people claim. And I don't want to stop the appointment of compassionate, progressive judges. I just want judges to confirm that it's the inalienable right of every woman - Sudanese, Turkish Muslim and Indigenous Australian - to be free of violence. If that means a bit of coaching to support a lot of law reform, so be it.

Phil Cleary

June 2006 unpublished