Preventive Confinement and the Security of State
Dr. Ruwantissa Abeyratne
MISTAKE: As little ones in school, one of the stories that we
revelled in was Alice in Wonderland by Lewis Carroll. In one instance,
we find Alice being confused by an argument adduced by the queen in
support of preventive confinement. The queen tells Alice that the king’s
messenger is in prison, being punished and the trial does not even begin
until the following week.
The messenger is being incarcerated for a crime he was yet to commit.
“Suppose he never commits the crime?” asks Alice. “That would be all the
better, wouldn’t it?” says the queen. Alice does not agree.
“Were you ever punished”? The queen asks Alice. “Only for faults”
says Alice. “And you were all the better for it” the queen retorts.
“Yes, but then I had done the things I was punished for” says Alice,
“and that makes all the difference”.
Dilemma
The queen is triumphant: “but if you had not done them, that would
have been even better still”.
And Alice thinks to herself, “there is a mistake here somewhere”.
Mistake indeed. This puts all of us who live in the modern world in a
dilemma between proactively pre-empting a calculating evildoer on the
one hand, and honouring the most fundamental tenet of democracy which
says that preventively confining someone is antithetical to the tenets
of civil liberty and erodes the fundamental right of a person to
liberty, on the other.
United States Supreme Court Justice Robert Jackson exhorted this
principle years ago when he said that the jailing of persons by the
courts because of anticipated but yet uncommitted crimes could not be
reconciled with traditional American law and is fraught with danger of
excess.
There have certainly been exceptions to this principle. One is called
the “dangerous person approach” based on self defence.
Principle
A striking example of this is found in the closing argument of John
Adams on behalf of the British soldiers accused to have carried out the
Boston massacre, when he said that the first and strongest principle is
to prevent our own deaths by killing those about to attack us.
However, to resort to an extreme measure such as preventive
confinement, one has to have compelling and incontrovertible evidence of
the guilt of a person beyond the shadow of a doubt.
Immanuel Kant, the eighteenth century German philosopher, in his book
Metaphysical Elements of Justice, said that it is intolerable to impose
punishment for a future crime, as judicial punishment must always be
imposed for a crime that has already been committed.
There is no doubt that we live in interesting times, when we propound
our own principles that are calculated to cocoon us from evil and
terror. One such is the “precautionary principle” which the New York
Times called one of the most important ideas of 2001.
The precautionary principle has its genesis in environmental
protection and is founded on the theory that it is morally justifiable
to take precaution against environmental damage.
This has now been extended to respond to threats to liberty and
security. However, the question is, to what extent can we spread the
precautionary principle over the canvass of the law?
We have created laws that justify our confining potential evildoers,
on the basis that we are preventing acts against the security of the
State by doing so.
In the United Kingdom, in the 1942 case of Liversidge v. Anderson,
the House of Lords considered Defence Regulation 18B which allowed the
Home Secretary to order a person detained if he has reasonable course to
believe that such a person was of hostile origin or association. The
majority decision in this case was to the effect that if the Home
Secretary thinks he has good cause that was good enough.
The dissenting judgment of Lord Atkin, who was of the view that
judges should not be more executive minded than the executive, was later
upheld in the appellate stage of the 1951 Sri Lankan case Nakkuda Ali v.
Jayaratne where the court held that such a power, to detain persons,
must be exercised on objectively reasonable grounds.
In the United States, of corresponding analogy is the wartime
experience where 120,000 Japanese persons were placed in detention camps
during the second world war. In 1988, the United States Congress passed
legislation to the effect that the prisoners had largely been detained
under racial and other subjective motivation which were determinants of
a weak political leadership.
There are instances where a State can be defended for invoking
preventive detention based on the overarching principle of social
contract by which the citizens charge the State with the responsibility
of ensuring their security.
Social Contract describes a broad class of philosophical theories
whose subject is the implied agreements by which people form nations and
maintain social order.
Social contract theory provides the rationale behind the historically
important notion that legitimate state authority must be derived from
the consent of the governed which, in other words means that a
democratic State is precluded from enacting draconian laws against the
civil liberty of citizens unless with the consent of the people.
The first modern philosopher to articulate a detailed contract theory
was Thomas Hobbes, who contended that people in a state of nature ceded
their individual rights to create sovereignty retained by the state, in
return for their protection and a more functional society, so social
contract evolves out of pragmatic self-interest.
Hobbes named the state Leviathan, thus pointing to the artifice
involved in the social contract.
Civil liberties
This brings one to the fact that, at the heart of the debate is the
concept of civil liberty. Civil liberties is the name given to freedoms
that protect the individual from government. Civil liberties set limits
for government so that it can not abuse its power and interfere with the
lives of its citizens.
Basic civil liberties include freedom of association, freedom of
assembly, freedom of religion and freedom of speech.
There are also the rights to due process to a fair trial and to
privacy. The best known genesis of civil liberties is the Magna Carta
(Latin for “Great Charter”, literally “Great Paper”).
Also called Magna Carta Libertatum (“Great Charter of Freedoms”), it
is an English charter originally issued in 1215. Magna Carta was the
most significant early influence on the extensive historical process
that led to the rule of constitutional law today.
Unlawful
For modern times, the most enduring legacy of the Magna Carta is
reposed in the right of Habeas Corpus which in common law countries is
the term ascribed to a legal action or writ by means of which detainees
can seek relief from unlawful imprisonment. The writ of habeas corpus
has historically been an important instrument for the safeguarding of
individual freedom against arbitrary state action.
Known as the “Great Writ”, a writ of habeas corpus ad subjiciendum is
a court order addressed to a prison official (or other custodian)
ordering that a prisoner be brought before the court so that the court
can determine whether that person is serving a lawful sentence or should
be released from custody.
The prisoner, or some other person on his behalf (for example, where
the prisoner is being held incommunicado), may petition the court or an
individual judge for a writ of habeas corpus.
The right of habeas corpus-or rather, the right to petition for the
writ-has long been celebrated as the most efficient safeguard of the
liberty of the subject. The great jurist Albert Venn Dicey wrote that
the Habeas Corpus Acts “declare no principle and define no rights, but
they are for practical purposes worth a hundred constitutional articles
guaranteeing individual liberty”.
In most countries, however, the procedure of habeas corpus can be
suspended in time of national emergency. In most civil law
jurisdictions, comparable provisions exist, but they are generally not
called “habeas corpus”.
There are instances where preventive detention will be necessary.
Alan Dershowitz, Professor of Law at Harvard University, in his book
Pre-emption - A Sword that Cuts Both Ways, asserts that “ There is a
desperate need in the world for a coherent and widely accepted
jurisprudence of pre-emption and prevention, in the context of both
self-defence and defence of others”.
Of course, here Dershowitz is referring to the international scene,
but it would not be wrong to ascribe this principle to the national
level when there is a dire need to control anarchy and insecurity of a
nation.
However, the bottom line for any preventive jurisprudence in the
omestic context is the social contract theory where State authority must
be derived from the people.
There must be a preventive jurisprudence in place governing the acts
of the executive and law enforcement officers. Preventive acts must
never be ad hoc, or decided at the whim of the law enforcer. If this
were not to be the case, as Alice said: “There is a mistake here
somewhere”.
The writer is Coordinator, Air Transport Programmes, International
Civil Aviation Organization, Canada. |