Spinning the news

I wonder if I’m just being naive in imagining that there was once a time when newspaper editors, at least on the quality broadsheets, maintained a clear distinction between news and opinion, and attempted as far as possible to report the news in a reasonably straight, unbiased fashion.

If those days ever did exist, they’re certainly long gone at the Fairfax organisation. It headlines Foreign Minister Downer’s latest response to assorted urgings that the Australian government take Singapore to the International Court of Justice over the Nguyen Tuong Van case in these terms: “Downer rejects experts’ opinion“.

You have to wade right down to the bottom of the story to discover that Downer hasn’t rejected the experts’ opinions at all; he’s simply exercised normal critical judgment and preferred the advice of the experts in his own Department and A-Gs, as well as that of Cambridge University expert Professor James Crawford, over the unsolicited urgings of a couple of academic lawyers (Donald Rothwell and Chris Ward).

Moreover, you don’t have to sleuth all that much further to gain a reasonable insight into just why Downer may have preferred the government’s legal advice over Rothwell and Ward.

Now I hasten to add that I don’t have access to Rothwell and Ward’s detailed advice (assuming they gave any). Nor is international law my area of academic or professional specialisation. But their assertions that Australia might be able to successfully bring Singapore before the ICJ and obtain an injunction to prevent Nguyen’s imminent hanging nevertheless look highly dubious. As this Wikipedia article observes:

There are a number of international conventions prohibiting the death penalty, most notably the Second Optional Protocol to the International Covenant on Civil and Political Rights, and the Sixth Protocol to the European Convention on Human Rights. However, such conventions bind only those that are party to them; customary international law does not prohibit the death penalty.

As far as I can see, Singapore isn’t a party to either of those optional protocols. Instead, this morning’s SMH story identifies another treaty as the supposed source of Rothwell and Ward’s view that we could get Singapore before the ICJ:

Professor Rothwell and Dr Ward – both in Sydney – advised that following an international court injunction there could be a case to decide whether Singapore’s mandatory death penalty breached a 1961 convention. The Single Convention on Narcotics does not support mandatory sentencing and has an article providing for the court to settle disputes between parties to it.

In fact, as far as I can see the Single Convention on Narcotic Drugs 1961 says nothing at all about either mandatory sentencing in general or the death penalty in particular. Moreover, Article 36 of the Convention (the only one specifically dealing with penal provisions) provides:

4. Nothing contained in this article shall affect the principle that the offences to which it refers shall be defined, prosecuted and punished in conformity with the domestic law of a Party.

And Article 39 provides:

Notwithstanding anything contained in this Convention, a Party shall not be, or be deemed to be, precluded from adopting measures of control more strict or severe than those provided by this Convention and in particular from requiring that Preparations in Schedule III or drugs in Schedule II be subject to all or such of the measures of control applicable to drugs in Schedule I as in its opinion is necessary or desirable for the protection of the public health or welfare.

Judging from what has been publicly revealed about Rothwell and Ward’s argument, I could only agree with Downer’s decision to prefer the advice of Commonwealth international law experts and Professor Crawford

Finally, lest any reader get the wrong idea, I strongly oppose the death penalty on both moral and utilitarian grounds. A few months ago I noted some US econometric research which claimed to establish that the death penalty had a significant deterrent effect. However, this submission by Professor Jeffrey Fagan of Columbia Law School fairly persuasively debunks that research IMO. Nevertheless, I think Paul Kelly’s opinion piece in this morning’s Oz summarises the overall situation with the Nguyen case far more fully and fairly than anything I’ve seen from the ABC or the Fairfax organs.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
This entry was posted in Law. Bookmark the permalink.
Subscribe
Notify of
guest
12 Comments
Oldest
Newest Most Voted
Inline Feedbacks
View all comments
Helen
2022 years ago

Nah. The reason Downer rejected the suggestion to take the matter to the International Court of Justice is due to the fact that Australia refused to have the matter of the Greater Sunrise (East Timor) adjudicated there. If they then asked someone else to go to the ICJ, they (the Australians) would be a laughing stock.

If you want my opinion, and I’m sure you don’t, the thing has been mucked up now because the Singapore government would lose too much face. Rather than concentrating on the Capital -Punishment-is -Barbaric theme, they should have concentrated on the Keep Nguyen Alive and Use him as a Witness approach, which would give Singapore the opportunity to release him without losing face.

Vee
Vee
2022 years ago

If ICJ or ICC is anything like the International sporting judiciaries – they’re all a big joke anyway

Geoff Honnor
Geoff Honnor
2022 years ago

Helen, the response to the Australian parliamentary motion sent to the Speaker of the Singaporean parliament indicated that Nguyen had been viewed – at least until very recently – as an unco-operative and unreliable witness, so that wouldn’t have worked either.

In Singapore, our reaction is viewed as a bunch of anglo pols whipping up a politically-advantageous, Hansonist fervour around slanty-eyed primitives murdering an Australian citizen. They don’t, of course, hear a peep from us when it’s a local.

To us, it does seem barbaric, but the Singaporeans
are pretty much convinced that their social cohesion and prosperity is dependent on a rock-solid resistance to societal dysfunction. It comes from being a tiny city-state located at the key strategic intersection of the world’s great global thoroughfares. On any given day hundreds of ships lie at anchor in the Singapore Roads and hundreds of flights land at Changi. Everything and everyone for thousands of kilometres funnels through the place.

It’s also an enclave of Overseas Chinese in an overwhelmingly Indo-Malay and Muslim area of the world. I suspect that Lee Kuan Yew has always feared becoming the social fallout zone for South-East Asia were Singapore to be a more liberal society. Being a great entrepot port is one thing: being an Asian incarnation of laissez le bon temps rouler is quite another.

Singapore was a bit like that up until the early 70’s and – sadly – it’s pretty obvious that the economic advances since then have been seen as an acceptable tradeoff for a less colourful and more closed and retributive society.

I’m sure that Fairfax is gearing up for a wave of post-Friday retribution. Howard and Downer will be painted as uncaring supporters of the death penalty who were never sympathetic to Nguyen’s case etc. Helen Clark’s decision to speak “informally” with Lee Hsien Loong in Malta – “PM, we believe the death penalty is wrong and urge you to reconsider your decision. ”

“Thank you, PM. We won’t be.”

is being headlined on ABC News tonight with Kim Beazley urging Howard to follow her courageous lead. You’d think that Lee Hsien Loong might have already cottoned on to the fact that the Australian government would really, really, really prefer that this young guy not be judicially executed but the politics have months to run yet.

whyisitso
whyisitso
2022 years ago

Hey Ken, surely you’re not joining Professor Bunyip is vilifying the Fairfax Press. Next you’ll be accusing the ABC of being ideologically biased in a leftwards direction.

Unfortunately the Professor’s been rather spasmodic in blogging this year, and even his occasional efforts aren’t anywhere near the standard of a year or two back. Us Fairfax and ABC phobes badly need another champion.

derrida derider
derrida derider
2022 years ago

Ken, the article was nowhere near as bad as the headline – it does make it clear that some experts had advised there was a course open to the government and that the government, on its own expert advice, has said the course was not in fact open. Journalists don’t get to put the headline on their articles, and in fairness to the subeditors, punchy but accurate headlines are hard. Why don’t you try summing the story up in four words?

whyisitso
whyisitso
2022 years ago

Yes, derrida, we know it’s not always easy. But punchy shouldn’t be a priority over accuracy. I do see a lot of simply inaccurate headlines in the SMH, and the inaccuracy nearly always reinforces the political leanings (left) of the SMH journalistic cabal.

Yobbo
Yobbo
2022 years ago

“Why don’t you try summing the story up in four words?”

“NO RECOURSE FOR NGUYEN”

There you go. Accurate and unbiased. Took me 3 seconds. Then again I was not actually trying to be biased, which the SMH undoubtedly are.

DJ
DJ
2022 years ago

It’s certainly no less objective than the Oz: Howard Protects Xmas Day Holiday, not that that’s saying much.
http://www.theaustralian.news.com.au/common/story_page/0,5744,17383824%255E601,00.html

Bill Posters
Bill Posters
2022 years ago

Rubbish, Yobbo. You’ve failed to include the rejection of one set of opinion over another in your headline, which is the core conflict the story talks about.

Try again; deadline was five minutes ago. Chop chop!

Ken Parish
Ken Parish
2022 years ago

“Nguyen legal experts disagree”

david tiley
2022 years ago

“Lawyers dispute moves on Nguyen”. Unless an expert is a villain, you can’t use the word.

Interesting how some people are interpreting the Fairfax line as anti-liberal. It seems to me in Melbourne that Jospin is just turning the heat up on any government he can find. He’ll go with any headline and lede that brands The Age as a crusader. To go back to Ken’s original point, the issue here seems to be that the idea of branding has spread, which automatically privileges the packet over the contents.

whyisitso
whyisitso
2022 years ago

Hey, making up the rules to suit yourself, david. That’s five words, not four!!!