Human rights, national security, and terrorism
Ramesh THAKUR
PROTECT INHABITANTS: Dr. Mohamed Haneef’s case highlights the
importance of a proper balance between civil liberties, individual human
rights, and the responsibility of the state to protect inhabitants from
terrorists.
Who would have thought that India would need to tutor Australia on
protecting individual human rights? Yet here we have the case of the
Government of India summoning the Ambassador of Australia to remind his
government of the need for due process in the treatment of an Indian
doctor detained in Brisbane.
The case highlights the importance of a proper balance between civil
liberties, individual human rights, and the responsibility of the state
to protect inhabitants from terrorists.
Before 9/11, western governments and human rights champions were
prone to moral ambivalence between perpetrators of terrorism and efforts
of legitimate governments to maintain national security and assure
public safety.
After 9/11, western governments began to view other countries’
parallel wars against terrorism through the prism of a fellow-government
facing agonising policy choices in the real world, rather than
single-issue groups whose vision is not anchored in any responsibility
for policy decisions.
Many governments used to be at the receiving end of moral and
political judgment about robust responses to violent threats posed to
their authority and order from armed dissidents. They now get a more
sympathetic hearing and mature understanding forged in the crucible of
shared suffering.
This does not give any government a licence to trample rights won at
great cost over many centuries: rights of people against governments. A
human right, owed to every person simply as a human being, is inherently
universal. Held only by human beings, but equally by all, it does not
flow from any office, rank or relationship.
The language of human rights embodies the intuition that the human
species is one and every individual is entitled to equal moral
consideration. It is vividly captured in the Second World War joke that
they came after the workers; I was not a worker, so I did not object.
They came after the homosexuals; I wasn’t one, so I did not object.
They came after the Jews; I wasn’t one, so I did not object. Then they
came after me: there was no one left to object.
Success in defeating terrorism can come only if we remain true to
values that terrorists reject. It is possible to resort to the lesser
evil of curtailing liberties and using violence in order to defeat the
greater evil of terrorism, but only if we do not succumb to the greater
evil of destroying the very values for which democracies stand.
The way to do this is to require of governments that they justify all
restrictive measures publicly, submit them to judicial review, and
circumscribe them with sunset clauses to guard against the temporary
becoming permanent.
The safeguards are especially important because the history of the
great democracies themselves suggests that most people privilege the
security of the majority over the harm done to minorities deprived of
their rights in the name of national security.
After 9/11, some western democracies re-calibrated the existing
balance between national security and civil liberties in their laws and
practices. American priorities shifted to subordinate human rights to
victory in the ‘war’ against terrorism.
A counter-terrorism expert testified that ‘after 9/11 the gloves came
off,’ while another official remarked that ‘if you don’t violate
someone’s human rights, you aren’t doing your job.’
There developed also the distasteful practice of ‘rendition to
torture,’ sending prisoners to their home countries precisely because
the latter were known to practise torture as a routine part of their
interrogation.
Many other democracies joined the United States in shifting the
balance of laws and administrative practices towards state security.
In Australia, the post-9/11 hysteria was harvested by the government
to introduce tough detention laws against illegal immigrants in defence
of a policy of Fortress Australia that led to the detention of dozens of
Australian citizens, one of whom was deported to her country of birth
and another, a mentally ill woman, spent ten months in detention.
Thus terrorism has an impact on human rights in three ways. First, it
is itself an extreme denial of the most basic human right, namely to
life, and it creates an environment in which people cannot live in
freedom from fear and enjoy their other rights.
Secondly, the threat of terrorism can be used by governments to enact
laws that strip away many civil liberties and political freedoms.
One simple yet popular technique is to reverse the burden of proof:
those accused of terrorist activities, sympathies or even guilt by
association on the basis of accusations by anonymous people are to be
presumed to be guilty until they can prove their innocence of
unspecified charges.
Thirdly, without necessarily amending laws or enacting new ones,
governments can use the need to fight terrorism as an alibi to stifle
dissent and criticism and imprison or threaten domestic opponents.
This is where the case of Dr. Mohamed Haneef is so very disturbing.
On the evidence presented to the Brisbane court, he made the mistake of
giving his prepaid SIM card to a second cousin in the United Kingdom
because the card would not be of any use to him in Australia for whose
sunny shores he was departing. The card was found in a car used by a
terrorist a year later.
Hardly surprising that the magistrate granted bail. This is where the
case gets curioser and curioser, as Alice remarked in her wonderland.
Having spent 12 days in custody before being questioned, then granted
bail pending trial, Dr. Haneef had his multi-year work visa cancelled on
‘character’ grounds.
No country will strip its Immigration Minister of the power to cancel
a visitor’s visa. But the purpose is to prevent someone from entering
or, if he is already in the country, to terminate his presence and
deport him.
In Dr. Haneef’s case the primary motivation would appear to be to
keep him in Australia under detention - and require him to pay for the
privilege at the end of it all, even if he should be acquitted.
To top it all, the government has made it clear that Dr. Haneef will
be deported even if he is ultimately found innocent. A case perhaps of
guilty even if proven innocent?
It is hard not to infer that this is a case of a serious misuse of
power and political interference in the process of criminal justice.
The dream of a world ruled by law is a shared vision. We must not
privilege security and order to such an extent as to destroy our most
cherished values of liberty and justice in the search for an
unattainable absolute security.
As Benjamin Franklin, one of the fathers of American independence,
said, those who would sacrifice essential liberty to temporary safety
deserve neither liberty nor safety.
The robustness and resilience of the civilised world’s commitment to
human rights norms and values will be judged in the final analysis not
by the breaches in the aftermath of 9/11, but by the reversal and
attenuation of the breaches through judicial and political processes as
well as the pressure of domestic and international civil society.
This is where the response of the Australian community to the prima
facie abuse of executive power by the Australian Government is so
reassuring: the legal fraternity, civil liberties groups, other sectors
of society, and even the State Premier have either roundly condemned the
extra-judicial detention of Dr. Haneef or demanded a public explanation
from the government.
The one disappointment has been the federal opposition Labour Party,
which frightened of being wedged on an issue of national security, has
once again resorted to ‘me tooism.’
If and when Dr. Haneef is tried in a court of law, the trial will be
about him: his beliefs, actions, and links to terrorism.
The manner, forum, and rules of procedure of the trial are not about
him, but about the quality and credibility of the Australian justice
system.
Specifically, does the Australian government believe in, respect, and
abide by the rule of law or disregard it as a mere inconvenience when
judicially tested?
The question of indifference or active concern about Dr. Haneef’s
fate in a foreign land is about Indian values and beliefs. A failure by
the government to demand justice for him would be an abdication of its
responsibility to protect citizens.
Courtesy: The Hindu |